WEBVTT - Leak of Draft SCOTUS Abortion Decision Is Stunning 0:00:03.080 --> 0:00:08.280 You're listening to Bloomberg Law with June Grasso from Bloomberg Radio. 0:00:08.920 --> 0:00:12.800 It was an extraordinary breach and a seismic shock hit 0:00:12.840 --> 0:00:16.520 the Supreme Court on Monday when political published a draft 0:00:16.600 --> 0:00:21.480 opinion overturning the seventy three landmark case of Roe v. Wade. 0:00:21.960 --> 0:00:25.840 In the draft by Justice Samuel Alito, five Justice is 0:00:25.960 --> 0:00:29.960 voted to overturn the constitutional right to abortion, which has 0:00:29.960 --> 0:00:33.440 been guaranteed for nearly half a century. Joining me is 0:00:33.560 --> 0:00:36.839 U C. L. A. Lawn Professor Adam Winkler. Generally, the 0:00:36.880 --> 0:00:40.280 Supreme Court has been considered just about leak proof. How 0:00:40.320 --> 0:00:43.960 surprised were you? Well, I was quite surprised, because while 0:00:44.000 --> 0:00:48.640 there have been a very very rarely leaks of appending 0:00:48.760 --> 0:00:51.920 outcome in a Supreme Court case, I can recall no 0:00:52.080 --> 0:00:56.000 case where we've seen a leak majority opinion in full 0:00:56.200 --> 0:00:59.640 laying out the courts reasoning and rationale and details of 0:00:59.720 --> 0:01:03.600 the vision. So that is even among the instances of 0:01:03.600 --> 0:01:09.600 previous leaks, historically unprecedented. Describe the process of the conferencing 0:01:09.840 --> 0:01:13.400 and the circulation of drafts, Well, that's right. This majority 0:01:13.440 --> 0:01:16.800 opinion is really only a draft majority opinion, and it 0:01:16.840 --> 0:01:19.240 may not be the final decision that comes out of 0:01:19.280 --> 0:01:22.520 the Supreme Court. The way the Supreme Court works is 0:01:22.560 --> 0:01:24.959 the Court here's oral argument, and then a few days 0:01:25.040 --> 0:01:27.640 later meets in what they call the conference. And the 0:01:27.680 --> 0:01:31.600 conference involves only the justices. No clerks or secretaries or 0:01:31.640 --> 0:01:34.280 assistance are allowed in the room, and they go around 0:01:34.319 --> 0:01:36.880 and vote on the cases and hash out how the 0:01:36.920 --> 0:01:40.280 reasoning is going to go. Those votes that the Court 0:01:40.319 --> 0:01:43.640 cast in the conference set a majority and sometimes a 0:01:43.720 --> 0:01:47.280 minority perspective on the court, and the two sides will 0:01:47.280 --> 0:01:49.840 go off writing their opinions. But those votes that are 0:01:49.880 --> 0:01:52.800 cast but the conference are not considered final votes. And 0:01:52.840 --> 0:01:55.600 there have been instances in the past where justices have 0:01:55.840 --> 0:01:59.880 changed their votes after the conference, including in planned Parenthood 0:01:59.880 --> 0:02:03.080 be casey, one of the important cases court here purports 0:02:03.120 --> 0:02:06.120 to overturn. Chief Justice John Roberts came out with a 0:02:06.240 --> 0:02:09.880 statement saying that this is not going to affect how 0:02:09.919 --> 0:02:14.200 the Court operates. But I wonder how this might in 0:02:14.280 --> 0:02:18.880 fact affect the justices at their conferences and in circulating 0:02:18.960 --> 0:02:23.040 future drafts. If they're concerned that there could be a leak. Well, 0:02:23.120 --> 0:02:25.840 I imagine it could have some effect. You might imagine, 0:02:25.919 --> 0:02:29.799 for instance, the Court adopting a system where every draft 0:02:29.880 --> 0:02:34.200 opinion has a watermark of some sort or a distinguishing feature, 0:02:34.520 --> 0:02:37.360 so that if a PDF file comes out like in 0:02:37.360 --> 0:02:40.799 this case, it can be traced back to the recipient 0:02:40.919 --> 0:02:44.639 of that draft. However, I also think that more importantly 0:02:44.680 --> 0:02:48.720 than the leaking of the opinion, it's the opinion itself 0:02:48.840 --> 0:02:51.120 is going to cause a lot of disharmony on the 0:02:51.160 --> 0:02:53.440 Supreme Court, and we're likely to see the two sides 0:02:53.480 --> 0:02:57.080 of the Supreme Court very very starkly divided in coming 0:02:57.160 --> 0:03:00.359 years and very bitter over the Court's overturning of Grow 0:03:00.480 --> 0:03:05.680 versus Way. Let's talk about what Justice Slido wrote in 0:03:05.760 --> 0:03:09.880 his opinion. He wrote that Row was egregiously wrong from 0:03:09.919 --> 0:03:14.800 the start. Explain his reasoning well. His argument is is 0:03:14.880 --> 0:03:18.200 that Row is an unwritten right under the Constitution, and 0:03:18.240 --> 0:03:21.080 that the way that we define which unwritten rights are 0:03:21.120 --> 0:03:24.840 protected by the Constitution simply doesn't support the holding of 0:03:24.919 --> 0:03:27.920 Row versus Wade. Alito says, the way we do that 0:03:28.080 --> 0:03:30.680 is we look to history and tradition. Those rights that 0:03:30.720 --> 0:03:34.639 are deeply rooted in history and tradition are protected by 0:03:34.720 --> 0:03:38.040 the Fourteenth Amendments to Process Clause and he says the 0:03:38.120 --> 0:03:41.960 right to abortion is not deeply rooted in history and tradition. 0:03:42.360 --> 0:03:45.960 Uh And indeed, many people have criticized Row versus Wade 0:03:46.000 --> 0:03:49.520 over the years for not offering a particularly vibrant and 0:03:49.600 --> 0:03:53.120 robust argument for why the right to choose abortion was 0:03:53.160 --> 0:03:57.400 protected by the Constitution. He wrote, far from bringing about 0:03:57.400 --> 0:04:01.080 a national settlement of the abortion issue, Row and Casey 0:04:01.120 --> 0:04:05.280 have inflamed debate and deepen division. That seems to me 0:04:05.320 --> 0:04:08.840 like it's a political argument. Well, there is a certain 0:04:08.880 --> 0:04:12.360 paradox in Alito's opinion. He says that the Court needs 0:04:12.400 --> 0:04:14.800 to rule on the basis of law without regard to 0:04:14.840 --> 0:04:18.760 any of the political consequences or political opinions Americans. And 0:04:18.880 --> 0:04:22.479 yet this very idea pops up in the reasoning of 0:04:22.520 --> 0:04:26.480 the Court that his majority opinion says that Row hasn't 0:04:26.480 --> 0:04:29.280 settled things, and because it hasn't settled things, that becomes 0:04:29.279 --> 0:04:32.600 a reason for overturning it. What that suggests is that 0:04:32.720 --> 0:04:35.440 people who are opposed to a constitutional ruling of the 0:04:35.440 --> 0:04:38.839 Supreme Court just need to agitate hard enough to make 0:04:38.920 --> 0:04:42.240 that a continuing and current controversy, and if so, then 0:04:42.279 --> 0:04:44.839 they will have unsettled the precedent and made it so 0:04:44.960 --> 0:04:49.360 the precedent doesn't survive. Let's talk about Alito's tone in 0:04:49.600 --> 0:04:54.320 writing this, which is very caustic and very critical of 0:04:54.600 --> 0:04:58.360 the Supreme Court author of row Well, I think that's right, 0:04:58.480 --> 0:05:02.080 and he is very caustic. And Alito's opinions have been 0:05:02.160 --> 0:05:05.400 very caustic for many years, and indeed his questions at 0:05:05.480 --> 0:05:08.720 oral argument often play the same way. One thing that 0:05:08.920 --> 0:05:12.880 seems to run through Alita's opinion is a lack of 0:05:13.000 --> 0:05:16.800 any understanding of how anyone could come up with a 0:05:16.839 --> 0:05:20.240 different argument or a different perspective on the underlying right, 0:05:20.640 --> 0:05:23.680 and I think that's one of the real weaknesses of 0:05:23.760 --> 0:05:26.440 this opinion. Many people have criticized some of the d 0:05:26.680 --> 0:05:30.120 process privacy opinions that were written by Justice Anthony Kennedy, 0:05:30.320 --> 0:05:34.200 such as Oberga Fowl and Lawrence recognizing same sex marriage 0:05:34.240 --> 0:05:37.800 and same sex intimacy as fundamental rights respectively. But one 0:05:37.839 --> 0:05:41.479 thing Anthony Kennedy was always very careful to do was 0:05:41.560 --> 0:05:44.320 to try to show respect for the other side and 0:05:44.400 --> 0:05:47.839 for people who had differings, and made specific efforts in 0:05:47.839 --> 0:05:51.640 his opinion to call those people into his opinion and 0:05:51.720 --> 0:05:55.680 to support his arguments rather than sneering at them as 0:05:55.760 --> 0:06:01.200 being totally lacking in merit and any serious constitutional Adam 0:06:01.320 --> 0:06:06.040 Alito writes that we've long recognized, however, that starry decisive 0:06:06.279 --> 0:06:09.760 is not an inexorable command, and he's got a list 0:06:09.839 --> 0:06:13.680 of cases. What does that do to the view of 0:06:13.720 --> 0:06:17.960 the Court as being, you know, an institution that follows precedent, 0:06:18.680 --> 0:06:21.960 even though on occasion we've seen that they don't follow precedent. 0:06:22.000 --> 0:06:24.200 But this is a precedent that the little girls were 0:06:24.240 --> 0:06:26.479 born with, this precedent, and now it's just being taken 0:06:26.520 --> 0:06:29.520 away from them. This right, Well, that's right, And I 0:06:29.600 --> 0:06:34.400 do think that U the Court's treatment of precedent just 0:06:34.520 --> 0:06:37.240 highlights that the Roberts Court in particular is not that 0:06:37.400 --> 0:06:41.120 interesting precedent and has been overturning precedents pretty much left 0:06:41.160 --> 0:06:43.919 and right, often just using the shadow dockets so that 0:06:43.960 --> 0:06:48.160 they don't even have to offer precise and concise opinion 0:06:48.240 --> 0:06:51.560 and reasoning explaining the decision. So we have seen that 0:06:51.640 --> 0:06:55.640 precedents are being overturned at an increasingly rapid rate in 0:06:55.800 --> 0:06:58.880 the new Roberts Court, especially after the addition of three 0:06:58.920 --> 0:07:02.520 new justices under as a Trump justice is Gorsch, Kavanaugh 0:07:02.680 --> 0:07:05.400 and Barrett and I think this case is a wake 0:07:05.480 --> 0:07:08.839 up call for those who think that Supreme Court nominees 0:07:08.920 --> 0:07:12.040 who go to the Senate and tell Susan Collins, as 0:07:12.080 --> 0:07:15.320 Brett Kavanaugh did, that rovers weight is the settled law 0:07:15.360 --> 0:07:17.720 of the land, don't really mean anything by it. That 0:07:17.880 --> 0:07:20.960 precedent doesn't really mean anything to the justices of the 0:07:21.000 --> 0:07:25.080 Supreme Court. Well, Elito himself described it as precedent of 0:07:25.200 --> 0:07:30.040 his own confirmation hearings. Leaks happen in Congress, leaks happen 0:07:30.080 --> 0:07:32.600 in the White House, not usually in the Supreme Court. 0:07:32.760 --> 0:07:36.400 How does this affect the Court's legitimacy? Does it reinforce 0:07:36.520 --> 0:07:40.440 the idea that it's become a more political institution. I'm 0:07:40.480 --> 0:07:43.800 not sure what effect the League will have on the 0:07:43.840 --> 0:07:46.960 perception of legitimacy of the Supreme Court. I think more 0:07:47.000 --> 0:07:50.040 disastrous to the legitimacy of the Supreme Court in the 0:07:50.040 --> 0:07:52.880 eyes of many in the public is overturning rovers His 0:07:52.960 --> 0:07:56.400 way is the substance of the underlying decision that was 0:07:56.600 --> 0:08:00.600 released in draft form. If this decision holds, I think 0:08:00.640 --> 0:08:03.800 that many many people will lose faith in the Supreme 0:08:03.800 --> 0:08:06.680 Court in a way that the Screen Court hasn't seen 0:08:06.800 --> 0:08:10.360 in many, many decades, and I would expect that a 0:08:10.400 --> 0:08:13.520 lot of people who used to say, well, yeah, they 0:08:13.520 --> 0:08:16.360 talk about overturning rovers as way, but they'll never really 0:08:16.400 --> 0:08:19.000 do it, will now have to be would be forced 0:08:19.000 --> 0:08:21.960 to really reconsider their approach to politics and who they 0:08:21.960 --> 0:08:24.800 want to vote for, and how important issues of choice 0:08:24.840 --> 0:08:28.880 really are to their sense of liberty and democracy. I've 0:08:28.920 --> 0:08:32.720 heard two different viewpoints, one being that the revelation of 0:08:32.760 --> 0:08:36.200 this draft opinion could lead the majority to dig in 0:08:36.280 --> 0:08:40.320 and stick to the opinion. The other side is that, well, 0:08:40.360 --> 0:08:43.320 it could lead some of the justices to rethink the 0:08:43.400 --> 0:08:46.319 opinion and perhaps go to the middle ground that the 0:08:46.400 --> 0:08:49.960 Chief Justice reportedly has been interested in. What do you 0:08:50.000 --> 0:08:52.520 think It's so hard to know, June. You know, we 0:08:52.600 --> 0:08:55.200 just don't have any information on leaked it and what 0:08:55.280 --> 0:08:58.280 the possible reasons are for leaking it. One could imagine 0:08:58.280 --> 0:09:01.600 an argument that this was leaked by conservatives who are 0:09:01.679 --> 0:09:06.120 looking to shore up Aldo's opinion and stop someone like 0:09:06.280 --> 0:09:10.880 a Kavanaugh from wavering and signing onto a more moderate decision. 0:09:10.920 --> 0:09:14.160 Others have speculated that it's probably someone on the left, 0:09:14.320 --> 0:09:17.840 left leaning clerk who's so outraged and shocked that that 0:09:18.000 --> 0:09:20.600 persone wants to let the world know what's coming in 0:09:20.720 --> 0:09:23.480 Supreme Court and how outrageous this opinion really is in 0:09:23.600 --> 0:09:26.160 light of constitutional law. I think those are really the 0:09:26.240 --> 0:09:29.680 key things, and among lawyers, I think that Alito's draft opinion, 0:09:29.720 --> 0:09:32.520 if it becomes the majority opinion, will not gain the 0:09:32.600 --> 0:09:36.000 respect of the legal community. At critical points in the argument, 0:09:36.040 --> 0:09:40.640 Aledo abandoned legal analysis for really pure policy preference. And 0:09:40.960 --> 0:09:43.400 I don't think that the argument that Alito makes will 0:09:43.440 --> 0:09:48.280 be received with any more compliments than Justice Blackman's original 0:09:48.320 --> 0:09:53.040 decision and Grow versus Way. So it is possible, not probable, perhaps, 0:09:53.120 --> 0:09:56.360 but it is possible that one of the justices could 0:09:56.559 --> 0:10:01.280 change their vote. Absolutely justices in and have changed their 0:10:01.360 --> 0:10:05.280 votes after a conference and after majority opinions has been circulated. 0:10:05.600 --> 0:10:09.640 It happens, you know, with some regularity. Without saying it's frequent, 0:10:09.720 --> 0:10:12.360 it does happen, and it happens many times over the years. 0:10:12.400 --> 0:10:15.400 One prominent example was Planned Parenthood Recasey, one of the 0:10:15.440 --> 0:10:18.079 cases that the Supreme Court reports to overturn in this 0:10:18.240 --> 0:10:22.000 draft opinion. In that case, Justice Kennedy originally voted to 0:10:22.040 --> 0:10:26.000 overturn Roe versus Wade and to uphold broad regulations of abortion, 0:10:26.080 --> 0:10:28.920 and then he changed his mind after the majority opinion 0:10:29.360 --> 0:10:33.200 started circulating. And it's happened in other much less controversial 0:10:33.240 --> 0:10:36.800 areas as well. Sometimes justice is fine that they think 0:10:36.840 --> 0:10:39.599 an outcome is right until they see an opinion explaining 0:10:39.640 --> 0:10:42.080 the outcome, and then they say, wait, that reasoning an 0:10:42.160 --> 0:10:44.680 argument just doesn't work for me. I think I'm going 0:10:44.720 --> 0:10:47.640 to change my votes. I would be very surprised if 0:10:47.679 --> 0:10:51.000 that happens in this particular case. I think these justices 0:10:51.040 --> 0:10:54.600 have been thinking about Roe versus Wade for many decades. 0:10:54.920 --> 0:10:57.120 All of them grew up at a time when roversus 0:10:57.120 --> 0:10:59.880 Wade was a very controversial opinion, the subject of much 0:11:00.000 --> 0:11:04.320 conversation among the Federalist society gatherings that that all of 0:11:04.360 --> 0:11:08.240 the current conservative justices attended with regularity, and so I 0:11:08.280 --> 0:11:11.760 think that their views on this issue are not really 0:11:11.840 --> 0:11:15.200 in play. And that brings us back to all the 0:11:15.240 --> 0:11:20.280 confirmation hearings where every single justice said Row was established precedent. 0:11:20.640 --> 0:11:23.680 I guess that doesn't mean much anymore. Well, I guess 0:11:23.679 --> 0:11:26.120 it only means that it's an established precedent, but not 0:11:26.320 --> 0:11:28.640 that that precedent will be upheld if they get the 0:11:28.720 --> 0:11:31.360 chance to rule on it. You know, there is nothing 0:11:31.400 --> 0:11:35.360 wrong with overturning precedent as a matter of constitutional law. 0:11:35.440 --> 0:11:37.560 The Court has done that many times, and we'll do 0:11:37.600 --> 0:11:41.160 it many times in the future. There is perhaps a 0:11:41.240 --> 0:11:44.480 little bit more of a concern about overturning precedent right 0:11:44.520 --> 0:11:47.840 now when we know that this challenge to Roe versus 0:11:47.840 --> 0:11:53.800 Way was really instigated by changing personnel on the Supreme Court, 0:11:54.160 --> 0:11:59.400 and it really undermines the Court's legitimacy to overturn widely supported, 0:11:59.800 --> 0:12:03.880 incredibly well recognized precedent like ro versus Wade, Life Planned 0:12:03.880 --> 0:12:08.480 Parent Heard versus Casey immediately after three new justices have 0:12:08.600 --> 0:12:12.160 been appointed. I think that really calls into question the 0:12:12.240 --> 0:12:15.800 courts neutrality, and for an opinion that claims to want 0:12:15.800 --> 0:12:18.480 to leave the issue of abortion to politics and not 0:12:18.559 --> 0:12:23.480 constitutionalize it, we see that the constitutional question itself is 0:12:23.520 --> 0:12:28.000 decided by politics, decided by the election and Mitch McConnell's 0:12:28.120 --> 0:12:32.000 manipulation of the confirmation process to get three justices appointed 0:12:32.040 --> 0:12:35.080 to the Supreme Court in the Trump years. People are 0:12:35.160 --> 0:12:38.400 now speculating. A leader in his opinion said, this doesn't 0:12:38.440 --> 0:12:41.600 mean that other rights are in jeopardies. But does this 0:12:41.800 --> 0:12:45.880 mean that other rights based on privacy are in jeopardy, 0:12:45.960 --> 0:12:51.480 for example, same sex marriage, or contraception, or interracial marriage. 0:12:51.640 --> 0:12:54.600 I think all of those precedents are called into question 0:12:55.040 --> 0:12:59.840 quite directly by all opinion. You're absolutely right. Alito's opinions 0:12:59.840 --> 0:13:03.000 to those decisions are not affected by the abortion move 0:13:03.280 --> 0:13:06.400 he says, because abortion is different. Abortion is different, he says, 0:13:06.520 --> 0:13:12.040 because it involves potential fetal life and protecting potential to life. Well, 0:13:12.400 --> 0:13:15.640 that's there as a distinction, except it's not a distinction 0:13:15.640 --> 0:13:19.760 that's grounded in constitutional law or constitutional analysis. Right, there's 0:13:19.760 --> 0:13:22.040 nothing in the history and tuition of the fourteenth Amendment 0:13:22.320 --> 0:13:25.199 that says anything about fetal life or why the rights 0:13:25.240 --> 0:13:28.679 that affect third parties aren't going to be recognized by 0:13:28.720 --> 0:13:32.600 the Constitution. We have many rights that adversely affect third parties. 0:13:32.679 --> 0:13:34.560 Think of the Second Amendment right to keep and bear 0:13:34.679 --> 0:13:37.440 arms that results in a number of people dying every 0:13:37.480 --> 0:13:40.520 year from gun violence. And so he makes a distinction 0:13:40.520 --> 0:13:42.680 of the distinguish away of those cases. But the basis 0:13:42.760 --> 0:13:47.040 for the distinction has no constitutional grounding. It's just a 0:13:47.120 --> 0:13:50.120 policy preference. Well, we think this is different because it's 0:13:50.320 --> 0:13:53.280 uh being a life involved. Note that some of the 0:13:53.280 --> 0:13:56.240 other privacy rights that he referred to, such as the 0:13:56.320 --> 0:14:00.240 right to use contraception, arguably have a similar effect Row 0:14:00.360 --> 0:14:03.479 versus Way, and that a potential feet of life is involved. 0:14:03.640 --> 0:14:08.240 More importantly, I think that despite Alito's effort to distinguish 0:14:08.280 --> 0:14:12.280 those other privacy right cases, the history and tradition analysis 0:14:12.360 --> 0:14:14.920 that Alito offers that says we only really look to 0:14:15.080 --> 0:14:18.559 history and law before eighteen sixty eight, when the Fourteenth 0:14:18.600 --> 0:14:22.320 Amendment was adopted, would not support many of the privacy 0:14:22.400 --> 0:14:25.400 rights that the Court has found. The rights interracial marriage 0:14:25.400 --> 0:14:28.760 would not be recognized under this history and traditional test 0:14:29.040 --> 0:14:32.560 that Alito proposes. Here, a right to same sex intimacy 0:14:32.880 --> 0:14:35.920 or a right to minors to have some sexual privacy 0:14:36.040 --> 0:14:39.120 rights would not be recognized at all if we do 0:14:39.240 --> 0:14:42.040 the same history and tradition analysis that he offers. And 0:14:42.080 --> 0:14:46.280 so I think, despite Aldo's assurances, all those other rights 0:14:46.400 --> 0:14:49.760 are in jeopardy. Conservatives have had their eye on Row 0:14:50.000 --> 0:14:53.840 for so long. What is it about Row that has 0:14:53.920 --> 0:14:57.280 led this whole sort of revolution. Well, I think it's 0:14:57.360 --> 0:15:01.720 that there's a real large co hort and American society 0:15:01.760 --> 0:15:04.480 that wants to restrict abortion, that doesn't want women to 0:15:04.520 --> 0:15:06.960 have these rights that doesn't want women to be able 0:15:06.960 --> 0:15:10.440 to exercise this kind of control over their bodies and sexuality. 0:15:10.960 --> 0:15:14.320 And what's happened in in the last thirty years is 0:15:14.360 --> 0:15:16.280 that while there's been plenty of bad decisions about the 0:15:16.320 --> 0:15:20.320 Supreme Courts, plenty of decisions poor reasoning, but few of 0:15:20.360 --> 0:15:23.880 them occasion the kind of controversy and backlash that ro 0:15:24.040 --> 0:15:27.520 versus Wade has caused. And I think that's part of 0:15:27.560 --> 0:15:30.600 the reason why the Court will overturn rovers way, because 0:15:30.640 --> 0:15:33.800 these justices have been steeped in the idea that Roll 0:15:33.920 --> 0:15:38.440 versus Wade is the original sin of American constitutional law, 0:15:38.760 --> 0:15:43.720 the most obvious example in all of American history of 0:15:44.320 --> 0:15:47.800 unbridled judicial activism, and they see it as their role 0:15:48.240 --> 0:15:52.560 to overturn it and to restore an earlier version of 0:15:52.600 --> 0:15:56.000 American law in which women's bodily autonomy was not recognized 0:15:56.080 --> 0:15:59.720 as a constitutional right. Thanks so much for your insights ATAM. 0:15:59.760 --> 0:16:02.720 That's Professor Adam Winkler of u c l A Law School. 0:16:05.040 --> 0:16:09.120 Opioid overdose has killed nearly half a million Americans over 0:16:09.200 --> 0:16:13.440 two decades, and the epidemic is getting worse instead of better. 0:16:14.160 --> 0:16:17.640 D e a administrator and Milgram says an American is 0:16:17.760 --> 0:16:21.880 dying every five minutes from an overdose, and seventy five 0:16:22.000 --> 0:16:25.640 percent of those deaths are from opioids. It's you know, 0:16:25.680 --> 0:16:32.520 Americans of all ages, cuts across every single demographic rural, urban, suburban, 0:16:32.920 --> 0:16:37.080 and that people are dying at record rate. San Francisco 0:16:37.240 --> 0:16:42.080 says opioid manufacturers Allergan and Teva distributor and a and 0:16:42.200 --> 0:16:46.920 pharmacy giant Walgreens flooded the city streets with prescription drugs 0:16:47.120 --> 0:16:50.280 and it's suing over the toll opioids have taken on 0:16:50.320 --> 0:16:53.640 the city where one quarter of emergency room visits are 0:16:53.680 --> 0:16:57.800 the result of opioid related issues. Joining me is healthcare 0:16:57.800 --> 0:17:01.840 attorney Harry Nelson of Nelson Harden In Harry, san Francisco 0:17:02.080 --> 0:17:05.359 is using a public nuisance theory? What does it have 0:17:05.440 --> 0:17:09.040 to prove to make its case? So to prove a 0:17:09.040 --> 0:17:11.880 public nuisance, San Francisco has to prove that the three 0:17:11.960 --> 0:17:16.800 drug companies at issue, along with Walgreen's pharmacy, basically engaged 0:17:16.840 --> 0:17:21.520 in behavior that's so harmed so many people in San 0:17:21.560 --> 0:17:24.760 Francisco and that they need to be essentially forced to 0:17:24.800 --> 0:17:27.360 pay for that harm. And the harm here that we're 0:17:27.359 --> 0:17:30.200 talking about, of course, this prescription opioid, and the claim 0:17:30.280 --> 0:17:34.080 is that these companies are responsible for having flooded San 0:17:34.119 --> 0:17:37.680 Francisco with prescription opioids and then failed to prevent them 0:17:37.680 --> 0:17:42.280 from being routed into the illegal market for misuse. San 0:17:42.320 --> 0:17:47.119 Francisco claims they aggressively marketed opioids to doctors as a 0:17:47.200 --> 0:17:50.959 risk free panacy for all forms of pain. What's the 0:17:51.040 --> 0:17:57.240 line between aggressively marketing and just marketing. It's an interesting question. 0:17:57.280 --> 0:17:59.680 I think, you know, it's much easier when we talk 0:17:59.720 --> 0:18:02.040 about this question of where the line is on marketing 0:18:02.359 --> 0:18:05.720 to look at behavior from for example, Perdue Pharma, where 0:18:05.920 --> 0:18:08.399 it was very clear that they were aware that the 0:18:08.440 --> 0:18:12.240 problem of overdoses and the addictiveness of the drug was 0:18:12.400 --> 0:18:15.720 causing problems, and they just kept marketing more aggressively and 0:18:15.760 --> 0:18:18.480 sort of building that issue into their marketing. It's a 0:18:18.480 --> 0:18:22.720 lot more fuzzy when you come to companies like Walgreens 0:18:22.960 --> 0:18:27.040 or Alegant Tava Pharmaceutical, where they were offering these drugs 0:18:27.040 --> 0:18:29.040 in the market. It's not clear what they did that 0:18:29.119 --> 0:18:32.639 was so unusual in that marketing, And frankly, I think 0:18:32.760 --> 0:18:34.320 that the city is going to have a very hard 0:18:34.359 --> 0:18:37.919 time showing that there was anything particularly distinctive about the 0:18:37.920 --> 0:18:40.680 way that these drugs were promoted, is that somehow ignored 0:18:40.720 --> 0:18:44.000 the risk associated with them. The defendants claimed that they 0:18:44.000 --> 0:18:47.560 were sort of bit players in the opioid crisis, and 0:18:47.640 --> 0:18:51.160 they say the blame should be directed at Perdue, which 0:18:51.200 --> 0:18:55.600 has declared bankruptcy. I think it's a compelling argument. You know. 0:18:55.760 --> 0:18:57.960 The reality is that there were a lot of companies 0:18:57.960 --> 0:19:01.280 that manufactured and distributed, and in the case of the pharmacy's, 0:19:01.359 --> 0:19:04.440 dispensed these drugs. But they are not all equal. Right, 0:19:04.520 --> 0:19:09.400 Perdue Pharma made billions of dollars and orchestrated an aggressive 0:19:09.560 --> 0:19:14.080 campaign to manipulate how doctors and patients perceived the risk. 0:19:14.280 --> 0:19:16.879 There's not the same kind of evidence with regard to 0:19:17.160 --> 0:19:20.800 Allergan and Haveva. These are companies that clearly had a 0:19:20.840 --> 0:19:24.800 business line devoted to pain medication, but there's no signs 0:19:24.840 --> 0:19:27.399 that I've seen to this point to suggest that they 0:19:27.440 --> 0:19:31.760 were somehow scheming to hide the risks associated with these 0:19:31.760 --> 0:19:35.000 medicines or doing something to promote them more aggressively than 0:19:35.200 --> 0:19:37.960 all the other medications that they sell. I personally think 0:19:38.000 --> 0:19:40.040 that the city has an uphill battle In this case, 0:19:40.800 --> 0:19:45.320 before trial, defendants J and J and three large distributors 0:19:45.320 --> 0:19:49.360 reached a twenty six billion dollar nationwide settlement of opioid claims. 0:19:49.400 --> 0:19:53.159 As I mentioned, Perdue went bankrupt five days before trial, 0:19:53.280 --> 0:19:56.800 and O Pharmaceuticals reached a deal with the city. Let's 0:19:56.800 --> 0:19:59.480 say the jury does fund these drug companies in this trial, 0:19:59.720 --> 0:20:05.880 lie do they consider the settlements in deciding damages. If 0:20:05.920 --> 0:20:09.199 they reach a decision that there is liability, that the 0:20:09.240 --> 0:20:12.400 city proved his case of a public nuisance, the jury 0:20:12.440 --> 0:20:17.119 will then be asked to apportion responsibility and to allocate 0:20:17.200 --> 0:20:21.040 some responsibility to different companies. So there's going to be 0:20:21.359 --> 0:20:24.720 a moment where a jury is asked to decide how 0:20:24.840 --> 0:20:28.560 much Allergan, for example, is responsible or how much Walgreen 0:20:28.600 --> 0:20:32.480 is responsible of the total amount of liability here. And 0:20:32.480 --> 0:20:34.600 and that's a very you know, it's hard to see 0:20:34.640 --> 0:20:37.040 how a jury is going to be in a good position, 0:20:37.080 --> 0:20:39.720 assuming that they get that far, to make a really 0:20:39.920 --> 0:20:43.119 nuanced decision when you have a lot of different companies, 0:20:43.440 --> 0:20:45.959 you know, promoting a drug for which there was enormous 0:20:46.040 --> 0:20:49.200 demand clearly, you know, for pain, but which was risky. 0:20:49.359 --> 0:20:51.480 That's the process the jury will be forced to go through. 0:20:51.800 --> 0:20:53.960 But I can't say that I am optimistic that it 0:20:53.960 --> 0:20:57.760 will be an easy one or necessarily precise one for 0:20:57.800 --> 0:21:00.800 deciding how much each party should be response able to pay. 0:21:00.920 --> 0:21:04.879 Do you have any insight into why the other you know, 0:21:04.960 --> 0:21:08.680 why J and J D, etcetera. Why they decided to settle. 0:21:09.359 --> 0:21:13.120 Some of these companies have previous cases where there has 0:21:13.200 --> 0:21:15.640 been more negative evidence. So I think in the case 0:21:15.720 --> 0:21:19.320 of Endo, for example, there there was some evidence, not 0:21:19.480 --> 0:21:21.760 nearly to the extent that we had against Purdue Pharma, 0:21:22.119 --> 0:21:24.919 but that they were a company that was aware of 0:21:24.920 --> 0:21:30.119 the risk and was marketing, for example, offering inducements to 0:21:30.400 --> 0:21:33.280 doctors to promote the drug. So Endo was one of 0:21:33.320 --> 0:21:36.359 those companies that had more risk because there was some 0:21:36.440 --> 0:21:38.720 bad behavior. And I think that a lot of the 0:21:38.720 --> 0:21:42.280 companies that chose to settle were companies that had something 0:21:42.720 --> 0:21:47.119 that they were afraid the prosecutors in the city attorneys 0:21:47.119 --> 0:21:50.680 here would would point to to actually make them look 0:21:50.760 --> 0:21:53.119 like they had behaved badly. And my feeling is just 0:21:53.119 --> 0:21:55.000 the opposite that in this case, the companies that are 0:21:55.040 --> 0:21:58.639 still standing don't see that evidence and are challenging the 0:21:58.640 --> 0:22:01.640 city to the case that they that they actually did 0:22:01.680 --> 0:22:05.480 anything wrong here. Some of the claims against Walgreens are 0:22:05.560 --> 0:22:09.119 that the pharmacy was under guideline to take fifteen minutes 0:22:09.160 --> 0:22:13.200 to fill prescriptions and that didn't check enough. That seems 0:22:13.480 --> 0:22:17.080 pretty thin. Yeah, you know, my perspective on this is 0:22:17.119 --> 0:22:20.560 that over the last two decades, we've seen the standards 0:22:20.600 --> 0:22:24.320 that are expected for pharmacies, for example, changed radically, and 0:22:24.359 --> 0:22:27.479 this whole set of expectations of how much compliance, how 0:22:27.520 --> 0:22:31.040 much verification a pharmacist and a pharmacy is expected to 0:22:31.080 --> 0:22:35.400 do to verify that something is legitimate, have been completely overhauled. 0:22:35.440 --> 0:22:39.440 But if we're not talking about Walgreen's actually affirmatively doing 0:22:39.480 --> 0:22:42.399 anything bad, we're saying that they failed to do certain 0:22:42.480 --> 0:22:45.680 checks that we wish they would have done. I definitely 0:22:45.720 --> 0:22:48.320 think that if you talk to anybody who is learning 0:22:48.320 --> 0:22:50.520 to be a pharmacist today, they're they're learning a very 0:22:50.560 --> 0:22:53.440 different set of responsibilities than the people who went through 0:22:53.440 --> 0:22:56.600 pharmacy programs, you know, twenty years ago. But but I 0:22:56.600 --> 0:22:59.240 do think that, um, I think it's a tough, tough 0:22:59.359 --> 0:23:02.600 argument because there was a way of doing business. Pharmacies 0:23:02.640 --> 0:23:04.640 were entitled to just see that if if it really 0:23:04.680 --> 0:23:07.000 was a prescription from a doctor to assume that it 0:23:07.040 --> 0:23:09.600 was legitimate and then all of a sudden. In cases 0:23:09.640 --> 0:23:11.639 like this, the argument is being made that no, the 0:23:11.640 --> 0:23:15.000 pharmacists had to do more, And it's not clear how 0:23:15.119 --> 0:23:18.879 much more pharmacists could do beyond just seeing that a 0:23:19.000 --> 0:23:22.040 doctor prescribed this to a patient. It's not clear that 0:23:22.080 --> 0:23:25.280 we want pharmacists to be second guesting doctors. So I 0:23:25.320 --> 0:23:28.159 actually think there's a very tough argument the city is 0:23:28.160 --> 0:23:30.640 going to have to try to prove here. This public 0:23:30.800 --> 0:23:36.320 nuisance legal strategy against drug makers for causing or fueling 0:23:36.320 --> 0:23:39.760 the opioid crisis hasn't had a very good track record, 0:23:39.840 --> 0:23:43.040 has it. A California judge ruled in favor of the 0:23:43.119 --> 0:23:48.159 defendants five pharmaceuticals, including Teva, five months ago, and the 0:23:48.200 --> 0:23:52.280 Oklahoma Supreme Court overturned a ruling against Johnson and Johnson. 0:23:52.359 --> 0:23:56.720