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Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio.

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Speaker 2: Well, I don't want to dwell on things that fall

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Speaker 2: out of the sky, but what about the situation where

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Speaker 2: the fire is caused by something that's utterly freakish, Something

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Speaker 2: fell a media meteorite fell out of the sky, or

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Speaker 2: some crazy person who was hearing voices decided that that

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Speaker 2: person was going to go throw a Molotov cocktail in

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Speaker 2: the window of this plant.

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Speaker 3: But the justices did dwell on some unusual hypotheticals involving

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Speaker 3: meteor strikes, molotov cocktails, and space trash. You might not guess.

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Speaker 3: The issue before the Supreme Court was what information companies

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Speaker 3: have to disclose about past events when warning investors about

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Speaker 3: future risks. Meta's Facebook is trying to get out of

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Speaker 3: a multi billion dollar securities fraud lawsuit accusing it of

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Speaker 3: painting the risk of the authorized use of user data

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Speaker 3: as hypothetical in twenty sixteen SEC filings, when in fact,

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Speaker 3: the company knew that political consulting firm Cambridge Analytica had

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Speaker 3: already accessed information on thirty million users in twenty fifteen,

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Speaker 3: Justice Neil Gorsk suggested that reasonable investors know about the

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Speaker 3: risk of data breaches at large companies. I think China

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Speaker 3: probably has all of our FBI files, you know.

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Speaker 2: I mean, data breaches are part of our lives these days.

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Speaker 3: But some of the liberal justices, particularly Elena Kagan, indicated

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Speaker 3: that investors need to know about misleading statements. There are

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Speaker 3: a range of ways in which these forward looking statements

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Speaker 3: can be misleading as to things that have occurred in

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Speaker 3: the past. Joining me is securities law expert James Park,

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Speaker 3: a professor at UCLI Law School. Jim tell us about

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Speaker 3: this suit against Facebook.

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Speaker 4: So this is a lawsuit class action brought on behalf

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Speaker 4: of investors of Facebook. Now it's meta for Facebook, as

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Speaker 4: with other public companies, issues periodic disclosures the form ten

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Speaker 4: K on a yearly basis, the ten ques, and these

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Speaker 4: typically have a lot of disclosures about risk which are

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Speaker 4: required by the SEC. And so the idea behind these

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Speaker 4: risk disclosures is that you're warning investors this is the

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Speaker 4: risk of investing in Facebook stock. And one of those

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Speaker 4: risk disclosures basically said that there could be a risk

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Speaker 4: of unauthorized access to user data that could damage Facebook.

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Speaker 4: And the reason why the planifs are saying this is

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Speaker 4: maturely misleading. Is that at the time Facebook made this statement,

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Speaker 4: it knew about a fairly large breach by a political

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Speaker 4: consulting firm called Cambridge Analytica of user data. And so

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Speaker 4: what the plantiffs are arguing is that you said that

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Speaker 4: unauthorized access could be a risk when you knew there

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Speaker 4: was a very significant unauthorized access at the time you

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Speaker 4: issued that risk disclosure. That's essentially what the securities class

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Speaker 4: action is dependent on.

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Speaker 3: So let's talk about the argument. And there were a

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Speaker 3: lot of strange hypotheticals thrown around. What were the concerns

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Speaker 3: of the justices.

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Speaker 4: I think one concern is that companies issue a lot

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Speaker 4: of risk disclosures about many different things. And you know,

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Speaker 4: one of the concerns that the justices are grappling with

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Speaker 4: is that if we say there's liability in this case,

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Speaker 4: so that mean that for almost every type of risk

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Speaker 4: disclosure that is being issued, that a lawsuit could come

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Speaker 4: up if you phrase things in the wrong way, if

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Speaker 4: you know there's something that happens relating to that risk,

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Speaker 4: and so there may be too much liability there, and

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Speaker 4: you know the effect that that may be that companies

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Speaker 4: will just issue very vague risk disclosures that don't say anything.

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Speaker 4: They may not issue risk disclosures at all. Right, if

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Speaker 4: I make you liable for a misleading risk disclosure, then

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Speaker 4: maybe I won't issue that risk disclosure at all in

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Speaker 4: the future. I think that's a concern, and I think

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Speaker 4: they're also just concerned that the rule seems to be

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Speaker 4: unclear here and it's tough for companies to navigate. You know,

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Speaker 4: what you have to disclose and when you have to

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Speaker 4: disclose it, And you know, there's a concern here that

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Speaker 4: we don't want to create a general duty to update

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Speaker 4: everything in these disclosures, because there's so much in any

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Speaker 4: SEC disclosure that it may be impossible to constantly update

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Speaker 4: every single aspect of it.

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Speaker 3: Is the question how much to disclose of the past

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Speaker 3: in the present, You know, if you don't think the

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Speaker 3: past is going to affect the future, I mean, what's

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Speaker 3: the exact issue.

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Speaker 4: I think what Facebook would say is the are primarily

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Speaker 4: forwardlooking statement. They are predictions, and so they're not really

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Speaker 4: meant to guarantee every single thing about past event. I

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Speaker 4: think that they're saying that we're making no guarantee that

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Speaker 4: there has been no unauthorized access to user accounts, And

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Speaker 4: in fact, I think they would say, of course, of

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Speaker 4: course there have been some abuses of Facebook privacy policies,

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Speaker 4: and everyone would know that at the time the risk

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Speaker 4: disclosure had been made. And I think Facebook is making

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Speaker 4: a fairly subtle argument here, which was to say that

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Speaker 4: it's true that we knew that there was an unauthorized

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Speaker 4: access by Cambridge Analytica. What we didn't know is that

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Speaker 4: it would affect our business so much. We had no

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Speaker 4: way of knowing that, and essentially we have no way

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Speaker 4: of predicting the future. We just didn't know that there

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Speaker 4: was an event that would eventually cause significant economic damage

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Speaker 4: to Facebook. We made no implicit representation about the past

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Speaker 4: in this particular disclosure. It's more of a forward looking disclosure.

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Speaker 3: In this case a hypothetical from Justice Kagan. A lot

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Speaker 3: of the justices kept coming back to it. A company

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Speaker 3: discloses a risk of fire, but doesn't disclose that there

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Speaker 3: had recently been a fire that destroyed fifty percent of

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Speaker 3: the plant.

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Speaker 4: Yes, that's a great hypothetical, and I think it pushes

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Speaker 4: back upon sort of Facebook statement that these statements do

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Speaker 4: not make implicit representations about past events, because implicit in

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Speaker 4: the risk of a fire in a building is that

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Speaker 4: the building is still there. I think that's one implicit recognition,

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Speaker 4: and I think there's also a recognition that there's not

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Speaker 4: a known high risk of the building burning down. And

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Speaker 4: I think that investors will want to know if there's

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Speaker 4: a very very high risk that the building is so

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Speaker 4: unsafe that we know it's very likely that it would

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Speaker 4: burn down. What she's arguing here is that, you know,

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Speaker 4: we should be required companies when they make these risk

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Speaker 4: disclosures to also speak completely and disclose risks that they

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Speaker 4: know about that they can calculate with some reasonable assurance.

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Speaker 4: And that's where Justice Keigan may come out.

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Speaker 3: At the end of the day, Justice Brett Cavanaugh asked,

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Speaker 3: why can't the SEC just write a regulation?

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Speaker 5: I mean, why is the judiciary have to walk the

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Speaker 5: plank on this and answer that question when the SEC

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Speaker 5: could do it with all the uncertainty and all the

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Speaker 5: hypotheticals that have arisen, which, in turn, at least as

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Speaker 5: I see it, just speaking for myself, raises a lot

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Speaker 5: of questions for companies about what they have to disclose

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Speaker 5: and what they don't.

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Speaker 3: And the Chief Justice and Justice Amy Coney Barrett seem

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Speaker 3: to agree with that. I mean, why can't the SEC

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Speaker 3: write a regulation?

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Speaker 4: They could, but it's difficult to write good regulations, and

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Speaker 4: I think that the more general the regulation is, the

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Speaker 4: easier it is for the SEC. That's one reason the

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Speaker 4: SEC is not adding more specificity. It's also easier though,

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Speaker 4: I think for public companies, right, the more specific you

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Speaker 4: write the regulations, then you know the company is going

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Speaker 4: to have to dig out all of this specific information

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Speaker 4: and that could be overly burdensome. And so sometimes corporations

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Speaker 4: want fairly vague disclosure requirements that they have some discretion

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Speaker 4: to comply with. And that's the whole idea behind principle

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Speaker 4: based regulation, which a lot of you know, what you

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Speaker 4: might think of as conservatives, have advocated for SEC regulation.

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Speaker 4: But I think Justice Kavanaugh has a good point, which

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Speaker 4: is that you know, if you are leaving this to

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Speaker 4: lawsuits to define, then you know courts, which are not

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Speaker 4: experts in these matters, have to make these very difficult,

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Speaker 4: complicated determinations of what should be disclosed. It also gives

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Speaker 4: a sense of regulation by enforcement, where lawsuits are being

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Speaker 4: used to regulate companies after the fact, and that's a

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Speaker 4: running theme of out both lawsuits by private litigants as

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Speaker 4: well as lawsuits by the Securities and Exchange Commissions. So

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Speaker 4: he asked a very good question. But I think that

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Speaker 4: there are some pressures that make it difficult for the

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Speaker 4: SEC to specify completely what the disclosures do look like.

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Speaker 4: And so what we have is a very imperfect system

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Speaker 4: where you know, these issues get fleshed out in lawsuits,

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Speaker 4: and often the lawsuits are settled, so we never even

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Speaker 4: actually resolved what was required. So, you know, the requirements

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Speaker 4: of disclosure for public companies, there's not clear didaces. It's

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Speaker 4: a lot of discretion, it's a lot of judgment that

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Speaker 4: is required in order to craft good disclosures. And I

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Speaker 4: think there's you know, some resentment by public corporations that

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Speaker 4: you have private enforcers who have a monetary incentive to

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Speaker 4: sue whenever they find something wrong in a company's disclosures.

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Speaker 4: And you know, you have to pay a lot of

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Speaker 4: money sometimes to settle these lawsuits because you don't want

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Speaker 4: to risk them going to trial. Now, you know. One

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Speaker 4: point I would add, though, is that in addition to

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Speaker 4: this private class action, the SEC brought a case against

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Speaker 4: Facebook for I believe essentially the same disclosure, and they

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Speaker 4: alleged that they were materially misleading. And Facebook actually settled

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Speaker 4: that case for one hundred million dollars. So the SEC

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Speaker 4: also has been asserting and pushing this particular theory as well.

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Speaker 3: Do you have any feel from the oral arguments about

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Speaker 3: how they might rule.

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Speaker 4: I think it'll be a very sacked specific decision. I

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Speaker 4: think that the court understands that this is a really

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Speaker 4: really hard issue and the Supreme Court is not qualified

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Speaker 4: to write very detailed disclosure rules, and so I think

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Speaker 4: they will try to limit the case to its fact.

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Speaker 4: It's a tough one. It's really tough to predict which

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Speaker 4: way they're going to go. I suspect maybe a majority

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Speaker 4: party will side with Facebook. You know that this is

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Speaker 4: a case where sure they knew there was a breach,

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Speaker 4: but they didn't know it would impact the company's business

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Speaker 4: as much as it did, and therefore the risk disclosure

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Speaker 4: was not materially misleading. Now it's possible though some of

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Speaker 4: the justices will buy the Plane's response. Basically, their response

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Speaker 4: is that, Okay, you must have known that, given the

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Speaker 4: size of the breach, that it was going to really

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Speaker 4: affect your reputation at the time you made that statement,

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Speaker 4: and therefore the risk disclosure was misleading. What you should

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Speaker 4: have done when you wrote the disclosure was acknowledged, Hey,

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Speaker 4: we have this very, very unprecedented significant reach of millions

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Speaker 4: and millions of users data. That's disclosure you should have written.

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Speaker 4: But I think it's going to be a close one,

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Speaker 4: and I think there could be some disagreement, But what

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Speaker 4: I am confident of is it's going to be a

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Speaker 4: fairly backed specific decision.

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Speaker 3: Did you see a split between the conservatives and the liberals.

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Speaker 4: Somewhat, although some of the conservatives I wasn't quite sure

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Speaker 4: or which way they were going. You know, Justice Thomas

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Speaker 4: starts out and ask some questions that I thought were

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Speaker 4: leaning a little bit towards the plaintiffs. You know, Justice

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Speaker 4: Tavanaugh's question is more just about why are we even

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Speaker 4: deciding this in the first place. You know, I do

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Speaker 4: think the liberal justices probably seem to be mostly sympathetic

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Speaker 4: to the question. And you know, Justice Alito has thought

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Speaker 4: a lot about these issues. He decided a few cases

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Speaker 4: when he was on the Third Circuit. I tend to

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Speaker 4: believe Alito, based on the Burlington Cope Factory's decision would

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Speaker 4: be less inclined to say that those disclosures were misleading.

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Speaker 4: But I could be wrong on that. It's hard for

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Speaker 4: me to say, but I think you could see some

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Speaker 4: coalescing that might break down under conservative and liberal.

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Speaker 6: Sort of life.

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Speaker 3: Thanks for joining me, Jim. That's Professor James Park of

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Speaker 3: UCLA Law School. There's been a lot of speculation that

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Speaker 3: in a second term, Donald Trump could create a High

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Speaker 3: Court with a Trump appointed conservative majority that could serve

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Speaker 3: for decades. After all, Trump appointed three Supreme Court justices

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Speaker 3: in his first term who've made up a super majority

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Speaker 3: that moved the Court for to the right. But it

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Speaker 3: was the deaths of Justices Antonin Scalia and Ruth Bader

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Speaker 3: Ginsburg and the retirement of Justice Anthony Kennedy that opened

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Speaker 3: those vacancies. Of course, with the help of then Senate

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Speaker 3: Majority Leader Mitch McConnell, who blocked President Barack Obama's nominee

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Speaker 3: Merrick Garland and pushed Amy Coney Barrett's confirmation through in

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Speaker 3: record time. It would take two justices leaving the bench

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Speaker 3: for Trump to be able to claim having nominated a

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Speaker 3: majority of justices on the Court matching the record of

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Speaker 3: President Dwight D. Eisenhower joining me his constitutional law expert

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Speaker 3: David Super, a professor at Georgetown Law. David, there's a

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Speaker 3: lot of speculation that one or two of the oldest justices,

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Speaker 3: the super Conservatives actually seventy six year old Clarence Thomas

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Speaker 3: and seventy five four year old Samuel Alito, could retire

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Speaker 3: and give Trump a chance to put younger conservatives on

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Speaker 3: the court. Do you think that's likely.

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Speaker 7: I'm not sure that it is. They both show every

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Speaker 7: sign of enjoying their jobs. Progressives don't like how they're

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Speaker 7: doing their jobs, but their opinions remain sharp. When they

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Speaker 7: choose to speak from the bench, they make sense, so

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Speaker 7: I can certainly imagine them feeling like they want to

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Speaker 7: keep doing this well.

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Speaker 3: Thomas, The New York Times reported that he once told

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Speaker 3: a former clerk that he intended to stay on the

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Speaker 3: bench until twenty thirty four. The Liberals made my life

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Speaker 3: miserable for forty three years, and I'm going to make

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Speaker 3: their lives miserable for forty three years. So we have

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Speaker 3: some time yet before he considers retirement. I suppose. On

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Speaker 3: the liberal side, there have also been renewed calls for

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Speaker 3: seventy year old Justice Sonia Soto Majord to retire before January,

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Speaker 3: so President Biden and the Democratic controlled Senate can quickly

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Speaker 3: confirm a successor. I don't know about quickly, but that

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Speaker 3: whole scenario seems unlikely to me.

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Speaker 7: Yeah, I can't imagine that she would do that, and

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Speaker 7: I think it would be a foolish move to try.

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Speaker 7: There was talk about their good Marshal retiring after Jimmy

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Speaker 7: Carter lost for reelection, and I think cooler heads prevailed

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Speaker 7: there and recognized that that couldn't be done in a snap.

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Speaker 6: Now.

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Speaker 7: I can't imagine that Senator Mansion or Senator Cinema would

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Speaker 7: be okay with this sort of a process at this point,

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Speaker 7: and without them you can't do anything.

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Speaker 3: As far as future judicial appointments, there have been reports

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Speaker 3: that Trump complained about his first term appointees being too

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Speaker 3: independent and not being loyal enough to him, and you know,

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Speaker 3: reportedly has fallen out with the Federalist Society, which basically

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Speaker 3: chose his judicial appointments during his first term. So what

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Speaker 3: do you expect from Trump as far as future judicial appointments.

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Speaker 7: I think he's not especially focused personally on the courts.

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Speaker 7: He's not a lawyer. He's never shown a lot of

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Speaker 7: interest in it. So my suspicion is that he will

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Speaker 7: go back to the federal of society. Perhaps not gives

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Speaker 7: them as celebrated and formal a role in the process,

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Speaker 7: but we will basically be getting more said sock.

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Speaker 3: Judges and more ideologues. It seems like even the judges

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Speaker 3: that he did appoint were ideologues more than respected jurists.

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Speaker 7: He appointed a arrange. Some of his appointments are splendid judges,

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Speaker 7: some of them are skilled ideologs, and some of them

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Speaker 7: are rather lost. I'm guessing the new round rule will

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Speaker 7: include some in each of those piles.

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Speaker 3: Now, the Biden administration has taken positions in certain cases

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Speaker 3: before the Supreme Court, and we can anticipate that the

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Speaker 3: Trump administration has opposing views and will want to back

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Speaker 3: out of those positions. How often does it happen that

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Speaker 3: new administration changes positions in cases before the Court.

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Speaker 7: It's become more and more frequent over time. Once upon

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Speaker 7: a time, it was considered shocking enough that the Supreme

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Speaker 7: Court would appoint a lawyer to argue the case as

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Speaker 7: friend of the Court, representing the position of the prior administration.

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Speaker 7: These days there's less of that. I think it is

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Speaker 7: understood by the justices that this is what happens in

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Speaker 7: a society where views on law have become very polarized.

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Speaker 3: Actually, in twenty eighteen, Justice so To Mayor seemed to

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Speaker 3: criticize Drum Solicitor General No Francisco for urging the Court

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Speaker 3: to overturn a precedent that allowed public sector unions to

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Speaker 3: collect fees from non union members, when the Obama administration

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Speaker 3: had argued in a prior case that it should be upheld.

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Speaker 4: This is such a radical new position.

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Speaker 6: On your court.

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Speaker 5: I don't think mister General, By the way, how many

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Speaker 5: times this term already have you flipped positions from prior administration?

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Speaker 5: Your honor may be, how many, your honor?

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Speaker 6: I think that we have revised the position in so

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Speaker 6: far three cases, but.

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Speaker 3: The Court ended up siding with the Trump administration and

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Speaker 3: overturning the forty year old president. Transgender rights is one

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Speaker 3: area where it seems likely that a Trump administration will

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Speaker 3: want to change positions. The Biden administration is fighting a

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Speaker 3: Tennessee law that bans medical treatments for adolescence with gender dysphoria.

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Speaker 3: Arguments are scheduled for December fourth, well before inauguration day.

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Speaker 7: What might happen in that case, Well, the Trump administration

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Speaker 7: has a couple of options. One is that they can

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Speaker 7: ask the court to reopen it to allow supplemental briefing.

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Speaker 7: Whether the Court would be inclined to slow itself down

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Speaker 7: to allow that is debatable. Second, they can simply declare

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Speaker 7: that their allegiance are on the other side and rely

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Speaker 7: on the briefs that we're opposing what the Biden administration advocated.

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Speaker 7: They can also express the intent to take executive action

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Speaker 7: to reverse federal regulations, but that can't be done instantly.

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Speaker 7: The court could decide the case and let them take

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Speaker 7: their own action through due course, or the court could

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Speaker 7: suspend the case to give them time to act. Or

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Speaker 7: the court could decide not to issue a ruling because

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Speaker 7: it expects the issue to go away.

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Speaker 3: The federal government already argued a case over ghost guns

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Speaker 3: to keep regulations for ghost guns on the books, so

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Speaker 3: that's already been fully briefed and argued. Now it's anticipated

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Speaker 3: that the Trump administration might oppose those regulations. What happens there?

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Speaker 3: Do they just pull the regulations?

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Speaker 7: Well, you can't just pull the regulation. The Administrative Procedure

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Speaker 7: Act and the Supreme Court have been very clear that

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Speaker 7: you have to go through the same procedure to remove

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Speaker 7: regulations that you did to create them. So it would

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Speaker 7: take a certain amount of time, probably a year, even

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Speaker 7: if they move very quickly to get rid of those regulations.

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Speaker 7: This is a case where the conservative le legenda has

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Speaker 7: a somewhat ironic impact in that a year ago, the

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Speaker 7: administration changing its views on how the statute should be

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Speaker 7: interpreted would be entitled a considerable weight. But today, because

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Speaker 7: the Supreme Court got rid of Chevron, the administration is

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Speaker 7: not entiled to any deference anyway. So one can well

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Speaker 7: imagine the Court saying, we really don't care if you've

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Speaker 7: changed your position, really.

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Speaker 3: Just ignoring the Trump administration.

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Speaker 7: Well, we're very early in the post Chevron world. There

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Speaker 7: always was deference. The administration's position mattered a great deal.

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Speaker 7: But the Court went at great lengths last spring to

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Speaker 7: tell us that Congress did not intend administration views to

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Speaker 7: get any special weight in interpreting laws. And on that basis,

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Speaker 7: one could well imagine the Court simply going ahead and

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Speaker 7: deciding the case and saying that the administration wants to

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Speaker 7: go through the procedures to remove the regulations, they're free

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Speaker 7: to do so. But what the administration might or might

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Speaker 7: not try to do or succeed in doing in the

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Speaker 7: future doesn't stop the Court from deciding the case.

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Speaker 3: In front of it, And the Court's conservatives have been

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Speaker 3: basically reining in federal agencies. Do you think that we'll

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Speaker 3: still see that kind of aggressive attack on regulatory agencies

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Speaker 3: by the Court in a Trump administration, which may be

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Speaker 3: using agencies to affect some of these broad changes.

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Speaker 7: I think different justices will have a different view. Chief

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Speaker 7: Justice Roberts has very little patients for sloppy in coombe

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Speaker 7: and agency work, whichever ideology the agency has, and when

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Speaker 7: presented with dishonest or incompetent agency actions in the first

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Speaker 7: Trump administration, did not hesitate to strike it down, so

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Speaker 7: I would expect he would be continued inclined to look

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Speaker 7: closely at agencies and whether they're dotting their eyes and

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Speaker 7: crossing their t's. Some of the other justices probably will

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Speaker 7: feel that a lower level of scrutiny should be applied

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Speaker 7: to deregulatory actions and was applied to regulatory actions.

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Speaker 3: Some disputes coming up involve the EPA, whether fights over

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Speaker 3: certain clean air regulations can be heard by circuit courts.

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Speaker 3: How might the Trump administration handle that case.

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Speaker 7: That's harder to know because that's an issue of process

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Speaker 7: that has implications that go far beyond the current or

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Speaker 7: next administrations. So one could imagine that the Trump administration,

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Speaker 7: although it's view on the ultimate merits may be different,

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Speaker 7: might not feel that that's a high priority to expend

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Speaker 7: its credibility with the court by switching positions, and may

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Speaker 7: see some benefit to staying out of it or not

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Speaker 7: disrupting what the Biden administration did.

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Speaker 3: Have you heard any rumors about who might be the

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Speaker 3: solicitor General?

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Speaker 7: I have not.

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Speaker 3: I have not either, and I can't believe that because

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Speaker 3: I've heard rumors about many other high level positions that

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Speaker 3: will have to be filled.

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Speaker 7: I think that the new administration is going to want

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Speaker 7: someone competent and credible, and so what you hear, at

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Speaker 7: least what I hear about various other positions are people

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Speaker 7: who may not be especially skilled or especially respected, but

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Speaker 7: are very close with Trump circles and with the former president.

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Speaker 7: I would expect the new solicitor general would be an

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Speaker 7: extremely conservative lawyer, but not necessarily someone who Trump knows.

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Speaker 3: There's going to be a lot to watch at the

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Speaker 3: Supreme Court next year. It's always a pleasure to talk

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Speaker 3: to you, David. That's Professor David super of Georgetown Law.

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Speaker 3: Coming up next on the Bloomberg Law Show. How ballot

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Speaker 3: measures will change access to abortion in seven states. I'm

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Speaker 3: June Grosso and this is Bloomberg.

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Speaker 1: We've done something on abortion that nobody thought was possible.

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Speaker 1: And I give those three brilliant if you think about it,

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Speaker 1: and it's six but the three that we put in,

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Speaker 1: but six brilliant justices of the United States Supreme Court

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Speaker 1: a tremendous hand for their intelligence but also for their courage.

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Speaker 3: Donald Trump has taken credit for the Supreme Court ending

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Speaker 3: the constitutional right to abortion in twenty twenty two, which

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Speaker 3: cleared the way for twenty one states to ban or

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Speaker 3: restrict access to abortion, but in the last two years,

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Speaker 3: nearly a third of the states have put abortion rights

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Speaker 3: on the ballot. Constitutional amendments to protect or expand abortion

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Speaker 3: rights passed in seven of the ten states where they

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Speaker 3: appeared on the twenty twenty four ballot, including in four

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Speaker 3: states that voted for Trump. Joining me is healthcare attorney

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Speaker 3: Harry Nelson, a partner at Leech Tishman Nelson Hardiman Harry.

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Speaker 3: Abortion rights ballot measures passed in four states that voted

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Speaker 3: for Trump, Arizona, Missouri, Montana, and Nevada. How do you

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Speaker 3: reconcile that, considering his having bragged about getting Roe v.

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Speaker 3: Wade reversed.

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Speaker 6: It's clear that abortion rights and reproductive health access have

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Speaker 6: a majority of support in pretty much every corner of America,

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Speaker 6: except that the issue is not the driver in this

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Speaker 6: election that it was in the twenty twenty two mid terms,

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Speaker 6: for example, and that clearly voters who supported Trump were

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Speaker 6: willing to see his abortion policy and politics as distinct

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Speaker 6: from the water anti abortion movement. So it does seem

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Speaker 6: like abortion was not the powerful issue that it was

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Speaker 6: in the previous election cycles since the repeal of rov Wade,

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Speaker 6: even though it bill clearly garnered significant support in most

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Speaker 6: of the places where it was before.

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Speaker 3: The voters In Missouri, nearly fifty two percent of voters

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Speaker 3: cleared the way to undo one of the nation's strictest

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Speaker 3: abortion laws. Will nearly fifty nine percent voted for Trump.

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Speaker 6: Yeah, Missouri had a near total ban on abortion, and

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Speaker 6: so this is a significant decision. One of the things

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Speaker 6: we can certainly take away is that there was a

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Speaker 6: huge gender gap in the selection, but many men who

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Speaker 6: sort of propelled Trump to victory in the presidential race

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Speaker 6: also supported abortion rights and voted, And so I don't

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Speaker 6: find that result surprising. It's clear that, you know, President

441
00:26:48,520 --> 00:26:51,840
Speaker 6: Trump opened up some space between himself and the anti

442
00:26:51,880 --> 00:26:56,080
Speaker 6: abortion movement. And it's also apparent that the driving factors

443
00:26:56,320 --> 00:27:00,000
Speaker 6: that propelled his victory had less to do with reproductive

444
00:27:00,080 --> 00:27:02,320
Speaker 6: of rights than other issues. When you see this kind

445
00:27:02,320 --> 00:27:03,000
Speaker 6: of a splay result.

446
00:27:03,240 --> 00:27:06,840
Speaker 3: Now, Arizona, which had the longest ballot in state history.

447
00:27:06,880 --> 00:27:09,840
Speaker 3: It took up like two pages, and apparently, you know,

448
00:27:09,880 --> 00:27:13,080
Speaker 3: momentum was gained there because the state Supreme Court ruling

449
00:27:13,119 --> 00:27:16,800
Speaker 3: in April found that the state could enforce this strict

450
00:27:16,880 --> 00:27:19,800
Speaker 3: abortion ban from eighteen sixty four.

451
00:27:20,240 --> 00:27:24,280
Speaker 6: Yeah, the court decision earlier in Arizona obviously shocked voters there.

452
00:27:24,400 --> 00:27:27,480
Speaker 6: And so, yeah, Proposition one thirty nine protects the right

453
00:27:27,560 --> 00:27:31,160
Speaker 6: to abortion in the state constitution itself, which is really

454
00:27:31,200 --> 00:27:34,960
Speaker 6: significant up to the point of fetal liability, which replaces

455
00:27:35,000 --> 00:27:37,040
Speaker 6: and gives a longer period than the fifteen week ban

456
00:27:37,119 --> 00:27:39,840
Speaker 6: that had been there. So that's a significant move on

457
00:27:39,880 --> 00:27:43,440
Speaker 6: the part of Arizona, and again, you know, not that surprising.

458
00:27:43,680 --> 00:27:47,280
Speaker 6: In general, the victories that the anti abortion movement has

459
00:27:47,320 --> 00:27:49,320
Speaker 6: had have come from court for the most part.

460
00:27:49,640 --> 00:27:53,520
Speaker 3: Abortion rights measures also passed in three states that voted

461
00:27:53,560 --> 00:27:59,320
Speaker 3: for Harris, Colorado, Maryland, and New York. So Colorado's measure,

462
00:27:59,720 --> 00:28:05,480
Speaker 3: beside sides enshrining access to abortion, also undoes an earlier

463
00:28:05,520 --> 00:28:10,280
Speaker 3: amendment that barred using state and local government funding for abortion.

464
00:28:10,480 --> 00:28:11,640
Speaker 3: So what does that mean?

465
00:28:11,880 --> 00:28:16,159
Speaker 6: So that's significant in that it really opens up not

466
00:28:16,280 --> 00:28:20,640
Speaker 6: just access itself, but funding reimbursement for providers to keep

467
00:28:20,720 --> 00:28:24,320
Speaker 6: professionals who are working this area, facilities open, and ensuring

468
00:28:24,400 --> 00:28:27,720
Speaker 6: access to the state portion of Medicaid funds. So one

469
00:28:27,760 --> 00:28:30,080
Speaker 6: of the issues that we may see come up now

470
00:28:30,080 --> 00:28:32,600
Speaker 6: that it looks like we're going to have Republican control

471
00:28:32,600 --> 00:28:36,159
Speaker 6: over both parts of Congress and the presidency is potentially

472
00:28:36,720 --> 00:28:40,440
Speaker 6: more restrictions on federal funding. So Colorado seems to be

473
00:28:40,600 --> 00:28:42,920
Speaker 6: the first state to ensure that there's going to be

474
00:28:42,960 --> 00:28:46,480
Speaker 6: state funding and we're talking here mostly Medicaid funding and

475
00:28:46,520 --> 00:28:50,080
Speaker 6: other facilities working on special grant programs in this area.

476
00:28:50,160 --> 00:28:52,280
Speaker 6: So I think that's a harbinger of a trend that

477
00:28:52,280 --> 00:28:55,520
Speaker 6: we're likely to see in other states, particularly as we

478
00:28:55,640 --> 00:28:58,080
Speaker 6: see a likelihood of more federal restriction.

479
00:28:58,640 --> 00:29:01,480
Speaker 3: New York's measure was a little different. It didn't even

480
00:29:01,560 --> 00:29:04,640
Speaker 3: mention the word abortion New York.

481
00:29:04,640 --> 00:29:09,440
Speaker 6: It was a proposal that prohibited discrimination based on pregnancy outcome,

482
00:29:09,560 --> 00:29:12,000
Speaker 6: So it was not a direct abortion rights New York

483
00:29:12,040 --> 00:29:15,040
Speaker 6: already has an abortion rights laws. But it's interesting New

484
00:29:15,120 --> 00:29:17,640
Speaker 6: York kind of went a step further in a different direction, right,

485
00:29:17,640 --> 00:29:20,280
Speaker 6: Colorado went further on public funding, but New York went

486
00:29:20,320 --> 00:29:24,719
Speaker 6: further on identifying a possible risk of discrimination that an

487
00:29:24,760 --> 00:29:29,320
Speaker 6: employer could, for example, make an adverse decision based on,

488
00:29:29,800 --> 00:29:32,600
Speaker 6: you know, pregnancy outcome. So it sort of identified and

489
00:29:32,600 --> 00:29:35,960
Speaker 6: broadened the scope of protected rights beyond the right to

490
00:29:35,960 --> 00:29:38,040
Speaker 6: the abortion itself, which was already in place.

491
00:29:38,160 --> 00:29:42,959
Speaker 3: In Maryland, abortion is already legal until viability. But explain

492
00:29:43,040 --> 00:29:47,600
Speaker 3: the importance of putting abortion rights into the constitution in Maryland.

493
00:29:47,880 --> 00:29:51,920
Speaker 6: It was a constitutional amendment, which is significant because it

494
00:29:52,040 --> 00:29:55,960
Speaker 6: establishes a much more permanent right than a mere ballot measure.

495
00:29:56,320 --> 00:29:59,840
Speaker 6: You know, obviously, when something is placed into the constitution itself,

496
00:30:00,120 --> 00:30:03,680
Speaker 6: it establishes it as a fundamental, more fundamental right, and

497
00:30:03,760 --> 00:30:06,640
Speaker 6: it forces courts to sort of put a privacy on

498
00:30:06,720 --> 00:30:09,520
Speaker 6: that right. So recognizing a right to abortion as part

499
00:30:09,560 --> 00:30:12,959
Speaker 6: of a broader right to privacy really sets the direction

500
00:30:13,120 --> 00:30:16,560
Speaker 6: and state policy that's going to reverberate much further in

501
00:30:16,600 --> 00:30:19,520
Speaker 6: the future, and not only in court review, but with

502
00:30:19,560 --> 00:30:22,240
Speaker 6: regard to future ballot measures. It's sort of just sets

503
00:30:22,240 --> 00:30:25,360
Speaker 6: a higher order of magnitude of priority on the question,

504
00:30:25,680 --> 00:30:28,640
Speaker 6: and so it's obviously it's a better place to be right.

505
00:30:28,680 --> 00:30:31,000
Speaker 6: We see some states that have moved to pass ballian

506
00:30:31,080 --> 00:30:33,480
Speaker 6: initiatives because those are the quickest way to get things

507
00:30:33,520 --> 00:30:36,080
Speaker 6: done just to present a measure to the voters where

508
00:30:36,080 --> 00:30:39,960
Speaker 6: state law allows. But actually amending the state constitution really

509
00:30:40,040 --> 00:30:42,880
Speaker 6: is a fundamental way to give more security to the

510
00:30:42,920 --> 00:30:45,440
Speaker 6: principle of a constitutional right to reproductive freedom.

511
00:30:45,720 --> 00:30:49,160
Speaker 3: Just because they pass these amendments, that doesn't mean that

512
00:30:49,200 --> 00:30:53,400
Speaker 3: the abortion bands in these states are suddenly off the books.

513
00:30:53,760 --> 00:30:56,000
Speaker 3: It requires some court action, doesn't it.

514
00:30:56,200 --> 00:30:59,240
Speaker 6: Like we've seen with abortion going back for the last

515
00:30:59,240 --> 00:31:02,160
Speaker 6: fifty years, a lot of times these laws stay on

516
00:31:02,240 --> 00:31:04,720
Speaker 6: the books, and we're actually going to need test cases

517
00:31:04,920 --> 00:31:08,680
Speaker 6: to come up and have courts formally rule, you know,

518
00:31:08,800 --> 00:31:10,440
Speaker 6: on the status of some of these old laws. So

519
00:31:10,440 --> 00:31:13,080
Speaker 6: there are a couple of places where these laws are

520
00:31:13,200 --> 00:31:14,920
Speaker 6: going to change things, but we're still going to have

521
00:31:14,920 --> 00:31:18,360
Speaker 6: to see cases filed, a little bit of anxiety and

522
00:31:18,400 --> 00:31:21,400
Speaker 6: stress for the providers and the patients who are in

523
00:31:21,440 --> 00:31:23,640
Speaker 6: those cases, But for better or worse, that's just the

524
00:31:23,760 --> 00:31:25,560
Speaker 6: process that we're going to see go forward here.

525
00:31:25,720 --> 00:31:28,200
Speaker 3: I mean, can we assume that judges are going to

526
00:31:28,560 --> 00:31:33,320
Speaker 3: follow the amendments and not put their own sort of

527
00:31:33,720 --> 00:31:34,520
Speaker 3: stamp on it.

528
00:31:34,920 --> 00:31:38,120
Speaker 6: I think the guarantee of abortion rights is something that

529
00:31:38,160 --> 00:31:40,760
Speaker 6: should give security here. I do think that while we

530
00:31:40,800 --> 00:31:44,800
Speaker 6: do see some opportunism from judges who feel strongly on

531
00:31:44,840 --> 00:31:47,840
Speaker 6: the anti abortion side, they can't do very much given

532
00:31:48,120 --> 00:31:50,800
Speaker 6: the appeal structure, and obviously appelic courts put the issue

533
00:31:50,800 --> 00:31:54,400
Speaker 6: before multiple judges and hopefully ensure that the law actually

534
00:31:54,440 --> 00:31:56,920
Speaker 6: gets followed. So I don't think anyone should worry that

535
00:31:56,960 --> 00:31:59,600
Speaker 6: these laws are not going to actually be implemented and

536
00:31:59,640 --> 00:32:01,240
Speaker 6: in form It's just we're going to have to go

537
00:32:01,280 --> 00:32:03,760
Speaker 6: through a process to actually make that happen.

538
00:32:04,160 --> 00:32:08,200
Speaker 3: And abortion amendments did not pass in Florida, Nebraska, and

539
00:32:08,320 --> 00:32:13,680
Speaker 3: South Dakota, Florida. What's unusual is that most voters supported

540
00:32:14,160 --> 00:32:17,680
Speaker 3: the Florida measure fifty seven percent, but it fell short

541
00:32:17,800 --> 00:32:21,680
Speaker 3: of the sixty percent required. So what's happening is a

542
00:32:21,680 --> 00:32:25,040
Speaker 3: minority of voters are able to keep the abortion ban

543
00:32:25,280 --> 00:32:25,880
Speaker 3: in place.

544
00:32:26,720 --> 00:32:30,240
Speaker 6: Yeah, that's a very surprising result. You know, obviously it

545
00:32:30,280 --> 00:32:33,440
Speaker 6: came very close. It's good news that fifty seven percent

546
00:32:33,480 --> 00:32:37,440
Speaker 6: of the voters support abortion rights, but obviously this sixty

547
00:32:37,480 --> 00:32:40,520
Speaker 6: percent threshold that Florida law requires to amend the constitution

548
00:32:41,200 --> 00:32:44,080
Speaker 6: was a barrier, and so we're stuck with the current

549
00:32:44,160 --> 00:32:47,240
Speaker 6: Florida abortion ban, which is a six week abortion ban,

550
00:32:47,440 --> 00:32:50,640
Speaker 6: very early, and that's a problem. So Florida has more

551
00:32:50,680 --> 00:32:53,400
Speaker 6: work to do, and we're going to see the fight continue.

552
00:32:53,680 --> 00:32:55,560
Speaker 6: The fact that it was fifty seven percent, that it

553
00:32:55,600 --> 00:32:58,400
Speaker 6: came so close makes me suspect that we're going to

554
00:32:58,400 --> 00:33:01,280
Speaker 6: see this issue return on the bowl in midterms, an

555
00:33:01,280 --> 00:33:05,040
Speaker 6: election cycle that is likely to draw out a different

556
00:33:05,120 --> 00:33:08,120
Speaker 6: voting pool in midterms. That's pretty close. So while it

557
00:33:08,200 --> 00:33:12,080
Speaker 6: is a victory that the anti abortion activist can claim,

558
00:33:12,240 --> 00:33:15,080
Speaker 6: it's a pretty narrow victory and I don't think it's

559
00:33:15,080 --> 00:33:16,920
Speaker 6: one that will hold up and Also.

560
00:33:16,720 --> 00:33:20,320
Speaker 3: The governor there Ron DeSantis pulled out all the stops

561
00:33:20,760 --> 00:33:24,640
Speaker 3: against the amendment, having election police go to voters front

562
00:33:24,680 --> 00:33:28,240
Speaker 3: doors to question them about signing a petition to add

563
00:33:28,280 --> 00:33:32,480
Speaker 3: the abortion referendum. He had a website. I mean, he

564
00:33:32,600 --> 00:33:35,120
Speaker 3: really went out of his way to try to get

565
00:33:35,120 --> 00:33:36,280
Speaker 3: that defeated.

566
00:33:36,760 --> 00:33:39,400
Speaker 6: Yeah, it's a little bit surprising that the Santis went

567
00:33:39,440 --> 00:33:42,720
Speaker 6: to such extreme measures. But you know who knows what

568
00:33:42,800 --> 00:33:45,440
Speaker 6: his plan is. You know, he came away from the

569
00:33:45,480 --> 00:33:49,280
Speaker 6: presidential election speeded, and obviously someone is advising him that

570
00:33:49,320 --> 00:33:51,160
Speaker 6: this is a winning place for him to be tough.

571
00:33:51,360 --> 00:33:53,520
Speaker 6: I think the fact that it's still got fifty seven

572
00:33:53,520 --> 00:33:57,240
Speaker 6: percent of voter support should hopefully raise question and give

573
00:33:57,320 --> 00:33:59,840
Speaker 6: him pause. But very surprising that he made such a.

574
00:34:00,200 --> 00:34:03,080
Speaker 3: On this issue in Nevada. It was the first time

575
00:34:03,280 --> 00:34:08,280
Speaker 3: in state history that competing initiatives appeared on the same ballot,

576
00:34:08,440 --> 00:34:11,359
Speaker 3: and I'm wondering if that had anything to do with

577
00:34:11,680 --> 00:34:13,680
Speaker 3: the defeat of the abortion measure.

578
00:34:14,320 --> 00:34:18,120
Speaker 6: I think there's an issue of confusing the voters with

579
00:34:18,440 --> 00:34:21,680
Speaker 6: competing ballot measures here. Right. The one that was approved

580
00:34:21,760 --> 00:34:24,040
Speaker 6: was the one that enshrines the current twelve week ban

581
00:34:24,160 --> 00:34:26,680
Speaker 6: with an exception for a rape for incests into the

582
00:34:26,719 --> 00:34:29,840
Speaker 6: life of the mother, but the broader measure that would

583
00:34:29,920 --> 00:34:32,839
Speaker 6: have added the right to abortion access to the state

584
00:34:32,880 --> 00:34:35,799
Speaker 6: constitution failed. I do think there was an element of

585
00:34:36,120 --> 00:34:39,640
Speaker 6: voters going for a more modif choice when presented with

586
00:34:39,680 --> 00:34:43,000
Speaker 6: two alternatives. And I also think that here too, this

587
00:34:43,120 --> 00:34:47,520
Speaker 6: election drove out a different voter base than we're likely

588
00:34:47,560 --> 00:34:49,759
Speaker 6: to see in the midterm elections. And I think that

589
00:34:50,160 --> 00:34:53,359
Speaker 6: this is not the last word in Nebraska, so that

590
00:34:53,680 --> 00:34:57,279
Speaker 6: while this is a setback, certainly for the reproductive health

591
00:34:57,320 --> 00:35:01,839
Speaker 6: access advocates, it was an unfortunate of competition and one

592
00:35:01,920 --> 00:35:04,160
Speaker 6: that has flowed things down in Nebraska.

593
00:35:04,640 --> 00:35:08,880
Speaker 3: What kind of an impact can Trump as president have

594
00:35:09,239 --> 00:35:11,280
Speaker 3: on abortion rights in the country.

595
00:35:11,880 --> 00:35:14,120
Speaker 6: Well, so we've heard a lot about whether there's going

596
00:35:14,160 --> 00:35:18,239
Speaker 6: to be some kind of national position created to coordinate

597
00:35:18,360 --> 00:35:23,160
Speaker 6: abortion restriction. Obviously, you know, we have enormous amounts of

598
00:35:23,239 --> 00:35:27,640
Speaker 6: federal healthcare dollars at stake through not only you know,

599
00:35:27,760 --> 00:35:30,960
Speaker 6: Medicare Medicaid, but through all the various federal funding programs.

600
00:35:31,000 --> 00:35:34,600
Speaker 6: So I think there is room if Trump is inclined

601
00:35:34,680 --> 00:35:38,120
Speaker 6: to be you know, supportive of anti abortion activists. Those

602
00:35:38,160 --> 00:35:41,080
Speaker 6: are certainly two major ways the thing I'm watching most

603
00:35:41,120 --> 00:35:44,960
Speaker 6: closely is that we avoided a problem with the FDA

604
00:35:45,280 --> 00:35:48,560
Speaker 6: pill that was challenged mifipristo and the abortion pill that

605
00:35:48,920 --> 00:35:52,480
Speaker 6: activists in Texas got a federal judge to ban, and

606
00:35:52,520 --> 00:35:54,959
Speaker 6: we saw a whole drama there that the Supreme Court

607
00:35:55,000 --> 00:35:57,480
Speaker 6: put to rest. But now the biggest question to me

608
00:35:57,600 --> 00:36:01,160
Speaker 6: is whether you know Trump or Trump's people are going

609
00:36:01,239 --> 00:36:05,120
Speaker 6: to try to make the FDA a site of more

610
00:36:05,239 --> 00:36:09,080
Speaker 6: problems for telemedicine abortion. We already know telemedicine abortion is

611
00:36:09,080 --> 00:36:12,680
Speaker 6: with mithipristone is now something like sixty percent or more

612
00:36:12,960 --> 00:36:15,920
Speaker 6: of all abortion, you know, which has really transformed it

613
00:36:16,120 --> 00:36:18,759
Speaker 6: to a much more private matter, you know, where women

614
00:36:18,800 --> 00:36:20,719
Speaker 6: don't have to come to clinics to have a procedure.

615
00:36:20,760 --> 00:36:22,759
Speaker 6: They can choose the time and place where they take

616
00:36:22,800 --> 00:36:25,960
Speaker 6: the medication and have much more privacy in the process itself.

617
00:36:26,160 --> 00:36:29,279
Speaker 6: So to me, the sort of scariest possibility is the

618
00:36:29,320 --> 00:36:32,720
Speaker 6: politicization of the FDA. It's going to be very interesting

619
00:36:32,719 --> 00:36:35,680
Speaker 6: to see what happens with health policy under Trump. When

620
00:36:35,680 --> 00:36:37,880
Speaker 6: he was elected in twenty sixteen, I co authored a

621
00:36:37,920 --> 00:36:40,800
Speaker 6: book making a lot of predictions, and I learned my lesson.

622
00:36:40,920 --> 00:36:42,719
Speaker 6: It's always dangerous to get ahead of what's going to

623
00:36:42,719 --> 00:36:45,560
Speaker 6: happen here, but I'm definitely watching with data breakfast see

624
00:36:45,640 --> 00:36:50,200
Speaker 6: how much the FDA gets politicized or hopefully, whether you know,

625
00:36:50,280 --> 00:36:53,360
Speaker 6: will allow the experts who are policing the safety of

626
00:36:53,360 --> 00:36:57,960
Speaker 6: our drugs and other medical devices applies do their workout interruptions,

627
00:36:58,000 --> 00:36:58,880
Speaker 6: so that remains.

628
00:36:58,640 --> 00:37:01,520
Speaker 3: To be soon. Thanks Harry. That's Harry Nelson of Leech

629
00:37:01,600 --> 00:37:04,759
Speaker 3: Tishman Hardeman Nelson. And that's it for this edition of

630
00:37:04,760 --> 00:37:07,800
Speaker 3: the Bloomberg Law Podcast. Remember you can always get the

631
00:37:07,880 --> 00:37:10,800
Speaker 3: latest legal news by subscribing and listening to the show

632
00:37:10,960 --> 00:37:15,440
Speaker 3: on Apple Podcasts, Spotify, and at Bloomberg dot com, slash podcast,

633
00:37:15,560 --> 00:37:19,440
Speaker 3: Slash Law. I'm June Grosso and this is Bloomberg