1 00:00:03,200 --> 00:00:07,960 Speaker 1: This is Bloomberg Law with June Bresso from Bloomberg Radio. 2 00:00:10,000 --> 00:00:13,800 Speaker 1: It's the most consequential reproductive rights case in thirty years, 3 00:00:14,200 --> 00:00:17,919 Speaker 1: and the Supreme Court's conservatives suggested they're ready to roll 4 00:00:18,000 --> 00:00:22,040 Speaker 1: back abortion rights and uphold Mississippi's ban on abortion after 5 00:00:22,120 --> 00:00:26,000 Speaker 1: fifteen weeks of pregnancy. In an argument that lasted almost 6 00:00:26,000 --> 00:00:30,760 Speaker 1: two hours, all six Republican appointed justices indicated they would 7 00:00:30,840 --> 00:00:34,680 Speaker 1: let states start banning abortion far earlier than the courts 8 00:00:34,760 --> 00:00:40,240 Speaker 1: precedents now allow. Here's Justice Samuel Alito. The fetus has 9 00:00:40,280 --> 00:00:44,280 Speaker 1: an interest in having a life, and that doesn't change, 10 00:00:44,360 --> 00:00:47,880 Speaker 1: does it? From the point before viability to the point 11 00:00:47,920 --> 00:00:52,040 Speaker 1: after viability? Liberal justice has suggested a decision that gutted 12 00:00:52,080 --> 00:00:55,080 Speaker 1: the precedence of Roe versus Wade and planned parent who 13 00:00:55,080 --> 00:00:59,800 Speaker 1: had versus Casey would undermine the courts legitimacy. Here's Justice 14 00:00:59,800 --> 00:01:05,320 Speaker 1: So so to mayor will this institution survive the stench 15 00:01:06,560 --> 00:01:14,400 Speaker 1: that this creates in the public perception that the Constitution 16 00:01:15,520 --> 00:01:20,160 Speaker 1: and it's reading are just political acts. Joining me is 17 00:01:20,160 --> 00:01:23,880 Speaker 1: Bloomberg New Supreme Court reporter Greg Store? How would you 18 00:01:24,040 --> 00:01:28,280 Speaker 1: characterize the questioning by the justices? The tone was it 19 00:01:28,480 --> 00:01:33,800 Speaker 1: even keeled? Contentious tents. There was a certain amount of contentiousness. 20 00:01:34,040 --> 00:01:36,720 Speaker 1: Mostly it was very much in favor of Mississippi. The 21 00:01:36,720 --> 00:01:40,960 Speaker 1: Conservative justices all suggested they were ready to uphold the 22 00:01:41,360 --> 00:01:45,080 Speaker 1: fift week ban, almost no questions from them suggesting any 23 00:01:45,080 --> 00:01:50,040 Speaker 1: skepticism towards it. Justice Clarence Thomas asked right away how 24 00:01:50,080 --> 00:01:53,680 Speaker 1: the Court could uphold the law without overturning the courts 25 00:01:53,760 --> 00:01:58,000 Speaker 1: precedents on abortion. Is there any way for the court 26 00:01:58,080 --> 00:02:01,080 Speaker 1: to do that? There didn't see to be away offered 27 00:02:01,080 --> 00:02:04,440 Speaker 1: by either side that satisfied the justices. Lawyers on both 28 00:02:04,480 --> 00:02:07,240 Speaker 1: sides are casting this case is pretty much in all 29 00:02:07,320 --> 00:02:11,519 Speaker 1: or nothing case. The abortion rights lawyers Julie Rickleman, the 30 00:02:11,680 --> 00:02:16,320 Speaker 1: Slicer General Elizabeth pre Lager, we're both essentially saying, if 31 00:02:16,360 --> 00:02:20,400 Speaker 1: you're going to uphold this law, you are essentially gutting Row. 32 00:02:20,680 --> 00:02:24,440 Speaker 1: And there's no middle ground standard that will be as 33 00:02:24,720 --> 00:02:28,120 Speaker 1: workable as the current one that we have. Was the 34 00:02:28,200 --> 00:02:32,760 Speaker 1: only question for the Conservatives then, whether to overrule Row 35 00:02:33,120 --> 00:02:37,679 Speaker 1: entirely or whether to stop at fifteen weeks of viability. 36 00:02:37,880 --> 00:02:39,760 Speaker 1: That sure seemed to be the case. So you had 37 00:02:39,800 --> 00:02:43,160 Speaker 1: two Justice John Roberts, who was mostly talking about the 38 00:02:43,200 --> 00:02:46,560 Speaker 1: fifteen week band aspect of the law. He wasn't talking 39 00:02:46,560 --> 00:02:51,079 Speaker 1: about overruling Row. And then you had Justices like Amy Coney, Barrett, 40 00:02:51,120 --> 00:02:55,000 Speaker 1: and Brett Kavanaugh who were really pressing on the starry 41 00:02:55,080 --> 00:02:58,200 Speaker 1: decisis issue, the idea that the Court will respect its presidents. 42 00:02:58,480 --> 00:03:00,639 Speaker 1: And then you had the most conservative justice says who 43 00:03:00,680 --> 00:03:03,200 Speaker 1: were pretty clear that overruling Row was what they had 44 00:03:03,240 --> 00:03:06,160 Speaker 1: in mind. So you had on one side of the 45 00:03:06,240 --> 00:03:12,399 Speaker 1: Justice Clarence Thomas, Samuel Alito, and Neil Gorsuch for overruling Row. 46 00:03:12,680 --> 00:03:17,000 Speaker 1: And then you had the liberals Justices Sonya Sotomayor, Stephen 47 00:03:17,040 --> 00:03:21,520 Speaker 1: Bryan and Elena Kagan for keeping Row and overruling this 48 00:03:21,600 --> 00:03:24,440 Speaker 1: Mississippi law. And then you had the other three sort 49 00:03:24,480 --> 00:03:27,079 Speaker 1: of in the middle, or not really in the middle, 50 00:03:27,120 --> 00:03:30,000 Speaker 1: because all the conservatives seemed to be ready to allow 51 00:03:30,040 --> 00:03:33,359 Speaker 1: the Mississippi law. Yeah, not really in the middle. Exactly, 52 00:03:33,360 --> 00:03:36,360 Speaker 1: they were ready to allow the Mississippi law. John Roberts 53 00:03:36,400 --> 00:03:38,920 Speaker 1: was really only talking about the specific law in front 54 00:03:38,960 --> 00:03:41,800 Speaker 1: of them, not about the broader question about overturning Roki, 55 00:03:41,880 --> 00:03:46,640 Speaker 1: Wade and Kavanaugh and Barrett almost all their question We're 56 00:03:46,760 --> 00:03:51,840 Speaker 1: suggesting they were at least thinking very seriously about overturning Row. 57 00:03:51,960 --> 00:03:55,960 Speaker 1: They were both suggesting reasons why the Court didn't need 58 00:03:56,000 --> 00:03:58,480 Speaker 1: to respect the president of rob Wade, while there might 59 00:03:58,520 --> 00:04:01,080 Speaker 1: be good reasons that the Court could overturn it, and 60 00:04:01,120 --> 00:04:03,600 Speaker 1: that the reasons that the Court gave in Row and 61 00:04:03,640 --> 00:04:07,160 Speaker 1: then in Casey for keeping abortion rights intact might not 62 00:04:07,200 --> 00:04:10,960 Speaker 1: be valid once so, remind me what Barrett and Kavanaugh 63 00:04:11,120 --> 00:04:15,600 Speaker 1: said about precedent in their confirmation hearings. Well, both of 64 00:04:15,600 --> 00:04:19,040 Speaker 1: them said they would respect precedent. Both of them acknowledge 65 00:04:19,120 --> 00:04:22,560 Speaker 1: Row and Casey as precedents of the Court, but they 66 00:04:22,640 --> 00:04:25,880 Speaker 1: didn't say that either of them were settled law. They 67 00:04:26,279 --> 00:04:29,400 Speaker 1: did not treat them the way they treated something like 68 00:04:29,480 --> 00:04:32,800 Speaker 1: Brown versus Board of Education, which they portrayed as a 69 00:04:32,839 --> 00:04:34,919 Speaker 1: decision that would never come up to the Court to 70 00:04:35,000 --> 00:04:38,120 Speaker 1: be second guest. They said that because there was a 71 00:04:38,240 --> 00:04:40,520 Speaker 1: chance that they would be asked to overturn Ruby Wade, 72 00:04:40,920 --> 00:04:43,320 Speaker 1: they didn't want to comment on what they thought about that. 73 00:04:43,960 --> 00:04:49,640 Speaker 1: Was any conservative justice agreeable to keeping the viability standard. 74 00:04:50,240 --> 00:04:52,760 Speaker 1: No one seemed to like the viability standard, and John 75 00:04:52,880 --> 00:04:57,360 Speaker 1: Roberts was certainly among them. He said that the viability 76 00:04:57,400 --> 00:05:00,880 Speaker 1: standard put the us UH in league a North Korea 77 00:05:00,920 --> 00:05:04,160 Speaker 1: and China as two other countries that had that standard. 78 00:05:04,400 --> 00:05:07,839 Speaker 1: Julie recommend. The lawyer representing the Jackson, Mississippi clinic a 79 00:05:07,880 --> 00:05:11,640 Speaker 1: shot back that he was incorrect in that assessment, but 80 00:05:11,960 --> 00:05:14,160 Speaker 1: he said that fifteen weeks seems like enough time for 81 00:05:14,160 --> 00:05:16,800 Speaker 1: somebody to make a decision. He seemed very ready to 82 00:05:16,880 --> 00:05:22,839 Speaker 1: jettison that standard. Barrett questioned the contention by the abortion 83 00:05:22,920 --> 00:05:26,200 Speaker 1: right advocates that women would be forced into bearing the 84 00:05:26,279 --> 00:05:29,839 Speaker 1: burden of parenthood if they couldn't have an abortion. Did 85 00:05:29,920 --> 00:05:34,279 Speaker 1: she suggest adoption as a viable alternative. She did, and 86 00:05:34,360 --> 00:05:36,720 Speaker 1: she returned to the subject a couple of times. She 87 00:05:36,800 --> 00:05:39,240 Speaker 1: talked about safe haven laws that she said, we're in 88 00:05:39,279 --> 00:05:41,760 Speaker 1: place in all fifty states that let a woman who 89 00:05:41,800 --> 00:05:44,559 Speaker 1: gives birth leave her baby in a in a safe 90 00:05:44,560 --> 00:05:47,200 Speaker 1: place to be adopted and then she doesn't have to 91 00:05:47,240 --> 00:05:50,160 Speaker 1: bear those burdens of a parenthood. And what Justice Barrett 92 00:05:50,200 --> 00:05:54,039 Speaker 1: was suggesting was that language and growing casey that suggested 93 00:05:54,279 --> 00:05:57,200 Speaker 1: that was a reason why the court needs to let 94 00:05:57,200 --> 00:06:00,359 Speaker 1: a woman and the pregnancy was not a vou reason. 95 00:06:01,160 --> 00:06:05,440 Speaker 1: What was the tone of the liberal justices because Justice 96 00:06:05,440 --> 00:06:10,120 Speaker 1: Sonya Soto Mayor said something that seemed rather shocking. The 97 00:06:10,120 --> 00:06:13,280 Speaker 1: theme among the liberal justices was that if the Court 98 00:06:13,320 --> 00:06:18,479 Speaker 1: overturns Row, it will lose its legitimacy and and justice. 99 00:06:18,480 --> 00:06:22,480 Speaker 1: So to Mayor uses the phrase will this institution survive? 100 00:06:22,600 --> 00:06:25,520 Speaker 1: The stench that this creates in the public perception that 101 00:06:25,600 --> 00:06:29,120 Speaker 1: the Constitution and its reading are just political acts. A 102 00:06:29,160 --> 00:06:32,200 Speaker 1: couple of the justices of liberal justices mentioned the Court's 103 00:06:32,320 --> 00:06:37,080 Speaker 1: change in membership and the perception that the country would 104 00:06:37,120 --> 00:06:40,800 Speaker 1: have that Row was being overturned, not because anything had 105 00:06:40,880 --> 00:06:44,279 Speaker 1: changed over the course of fifty years, just because the 106 00:06:44,360 --> 00:06:49,000 Speaker 1: court's membership had changed. I suppose the justices shouldn't be 107 00:06:49,560 --> 00:06:52,719 Speaker 1: thinking about public opinion, but it is sort of shocking 108 00:06:52,720 --> 00:06:56,479 Speaker 1: that they would seemingly take this turn at this point 109 00:06:56,480 --> 00:07:01,200 Speaker 1: in our history where a majority of the public supports abortion. 110 00:07:02,080 --> 00:07:05,320 Speaker 1: That's interesting and that may ultimately have an effect on 111 00:07:05,440 --> 00:07:08,400 Speaker 1: exactly how this case is resolved, depending on how you 112 00:07:08,440 --> 00:07:11,920 Speaker 1: asked the question. If if you ask folks about do 113 00:07:12,000 --> 00:07:15,480 Speaker 1: they support a fifteen week limit on abortion? Uh, then 114 00:07:15,520 --> 00:07:18,240 Speaker 1: there's more support for that sort of limit. So if 115 00:07:18,240 --> 00:07:22,640 Speaker 1: the Court could somehow limited decision to just the Mississippi law, 116 00:07:23,240 --> 00:07:26,560 Speaker 1: perhaps it wouldn't have the public opinion issue that you 117 00:07:26,720 --> 00:07:29,480 Speaker 1: just described. The problem for the court is that in 118 00:07:29,520 --> 00:07:32,160 Speaker 1: the absence of using viability as a line, it's not 119 00:07:32,240 --> 00:07:34,200 Speaker 1: at all clear, and certainly it's not clear that the 120 00:07:34,240 --> 00:07:38,440 Speaker 1: court has the interest what the other line might be. 121 00:07:38,680 --> 00:07:41,520 Speaker 1: What line might allow a fifteen week band but not 122 00:07:41,640 --> 00:07:44,119 Speaker 1: allow a six week band. And that's why there seemed 123 00:07:44,160 --> 00:07:46,160 Speaker 1: to be a good deal of momentum on the court 124 00:07:46,200 --> 00:07:48,680 Speaker 1: for just going ahead ripping off the band aid in 125 00:07:48,720 --> 00:07:51,720 Speaker 1: the overturning Row. And as you suggest, there could be 126 00:07:51,760 --> 00:07:54,880 Speaker 1: a backlash there. So remind you when the court took 127 00:07:54,960 --> 00:07:59,840 Speaker 1: this case, was there talk about overturning row? There was, 128 00:08:00,280 --> 00:08:03,080 Speaker 1: but not not as much. So what happened was when 129 00:08:03,080 --> 00:08:06,480 Speaker 1: Mississippi file its appeal, Ruth Vader Ginsburg was still alive, 130 00:08:06,880 --> 00:08:10,440 Speaker 1: the appeal did not explicitly ask the court to overturn row. 131 00:08:11,240 --> 00:08:15,040 Speaker 1: After Justice Ginsburg died, just spared joined the court. The 132 00:08:15,120 --> 00:08:18,600 Speaker 1: Court took agreed to take up the case, and then 133 00:08:18,640 --> 00:08:21,320 Speaker 1: when filed it's brief on the merits, that's when it 134 00:08:21,360 --> 00:08:24,160 Speaker 1: directly said, Hey, you should just go ahead and overturn 135 00:08:24,800 --> 00:08:28,920 Speaker 1: rowing casey. So that's why the emphasis here has changed. 136 00:08:29,160 --> 00:08:31,880 Speaker 1: And that's another factor that might matter when I talk 137 00:08:31,960 --> 00:08:35,880 Speaker 1: about how this decision is perceived by the public. As 138 00:08:35,920 --> 00:08:39,680 Speaker 1: we've talked about many times, the Chief Justice is in 139 00:08:39,800 --> 00:08:45,960 Speaker 1: favor of incrementalism, moving slowly. What would be moving slowly 140 00:08:46,320 --> 00:08:50,000 Speaker 1: in this case, moving slowly would be if the Court 141 00:08:50,080 --> 00:08:53,560 Speaker 1: could somehow find a way to uphold this this law. 142 00:08:53,600 --> 00:08:55,959 Speaker 1: And mind you, that would be a sweeping change, because 143 00:08:56,000 --> 00:08:58,360 Speaker 1: that is far earlier than the Supreme Court has ever 144 00:08:58,400 --> 00:09:01,520 Speaker 1: said is okay to the ban abortion. But the Court 145 00:09:01,559 --> 00:09:04,160 Speaker 1: could find a way to uphold this law, and just 146 00:09:04,520 --> 00:09:07,320 Speaker 1: limited to the facts of this case that it's a 147 00:09:07,320 --> 00:09:11,440 Speaker 1: fifteen week ban in Mississippi right now, the only clinic 148 00:09:11,520 --> 00:09:15,000 Speaker 1: there performs abortions only up to sixteen weeks, so that 149 00:09:15,120 --> 00:09:19,199 Speaker 1: the narrow effect of this law in Mississippi is pretty small. 150 00:09:19,840 --> 00:09:23,240 Speaker 1: The problem, of course, would be that almost immediately they 151 00:09:23,280 --> 00:09:27,040 Speaker 1: would be badged with other appeals saying well, then you 152 00:09:27,040 --> 00:09:30,360 Speaker 1: should also allow our twelve week ban or eight week 153 00:09:30,440 --> 00:09:32,880 Speaker 1: ban or our six week band. And it's gonna be 154 00:09:33,000 --> 00:09:35,160 Speaker 1: very hard for the court to find a way to 155 00:09:35,600 --> 00:09:37,439 Speaker 1: draw a line there. And that was something I think 156 00:09:37,480 --> 00:09:42,040 Speaker 1: the Solicitor General talked about also in the case of Mississippi, 157 00:09:42,520 --> 00:09:47,319 Speaker 1: is there a trigger that would completely ban abortions. Mississippi 158 00:09:47,360 --> 00:09:50,000 Speaker 1: is one of about twelve states that also has a 159 00:09:50,160 --> 00:09:54,920 Speaker 1: law that would automatically ban virtually all abortions if the 160 00:09:54,960 --> 00:09:58,280 Speaker 1: Court explicitly over rules Roe v. Wade, and so that 161 00:09:58,400 --> 00:10:00,120 Speaker 1: law we kick in. And there would probably be some 162 00:10:00,200 --> 00:10:03,800 Speaker 1: litigation over some some of those laws whether they actually apply, 163 00:10:04,440 --> 00:10:07,800 Speaker 1: but there would probably be beyond the twelve states and 164 00:10:07,920 --> 00:10:10,880 Speaker 1: other maybe another ten or so, according to abortion rights 165 00:10:10,880 --> 00:10:13,840 Speaker 1: the advocates, maybe even more than that. That would very 166 00:10:13,880 --> 00:10:18,520 Speaker 1: significantly limit abortion rights and and act pre viability bands. 167 00:10:19,400 --> 00:10:22,960 Speaker 1: Did any of the liberal justices make an impassioned plea 168 00:10:23,600 --> 00:10:27,079 Speaker 1: or was their passion on that side? It was mostly 169 00:10:27,080 --> 00:10:31,280 Speaker 1: from Justice so to Mayor, as is typical. Justices Kagan 170 00:10:31,320 --> 00:10:35,319 Speaker 1: and Briar were more focused on issues of the court's legitimacy. 171 00:10:35,400 --> 00:10:39,040 Speaker 1: Justice brier quoted from the Casey decision, and it's it's 172 00:10:39,080 --> 00:10:43,400 Speaker 1: concerns about the impact on the perception of the Court 173 00:10:43,840 --> 00:10:48,920 Speaker 1: if it's overruling its watershed precedents. The absence of Justice 174 00:10:48,920 --> 00:10:51,839 Speaker 1: Ginsburg was certainly felt today she would have been one 175 00:10:51,840 --> 00:10:54,920 Speaker 1: of those justices he would have expected to be very 176 00:10:54,960 --> 00:10:59,400 Speaker 1: passionate about what seems like is about to happen. Justice 177 00:10:59,440 --> 00:11:03,280 Speaker 1: Samuel Lilto was pretty stark in what he was saying 178 00:11:03,320 --> 00:11:07,520 Speaker 1: about getting rid of abortion. Yeah, Justice Lito, it was 179 00:11:07,559 --> 00:11:10,840 Speaker 1: pretty dark and clear. One thing he pressed Elizabeth pre 180 00:11:11,000 --> 00:11:14,720 Speaker 1: Lauger on was the idea that plus e versus ferguson 181 00:11:14,800 --> 00:11:19,920 Speaker 1: the ruling that said that state sponsored racial segregation was 182 00:11:19,920 --> 00:11:24,360 Speaker 1: was okay. He pressed her to conceive that that decision 183 00:11:24,480 --> 00:11:28,520 Speaker 1: was was so bad it should have been overturned immediately. Clearly, 184 00:11:28,559 --> 00:11:31,640 Speaker 1: in his head he is imagining Roevi Wade as as 185 00:11:31,679 --> 00:11:34,560 Speaker 1: being that sort of decision that was so bad that, uh, 186 00:11:34,760 --> 00:11:37,720 Speaker 1: it should be overturned just because of how bad it is. 187 00:11:37,880 --> 00:11:40,000 Speaker 1: And she said that the court had never revoked a 188 00:11:40,120 --> 00:11:44,480 Speaker 1: constitutional right it had extended. This would be the first time. Yeah, 189 00:11:45,000 --> 00:11:47,839 Speaker 1: and that that's an interesting way of casting this case, 190 00:11:47,880 --> 00:11:49,920 Speaker 1: and that's part of the reason why abortion rights supporters 191 00:11:49,920 --> 00:11:53,679 Speaker 1: are are uh so upset by it. But that didn't 192 00:11:53,720 --> 00:11:58,319 Speaker 1: seem to be a distinction that matter to the justices 193 00:11:58,640 --> 00:12:02,640 Speaker 1: when they talked about the court ruling precedents, Brett Kavanaugh 194 00:12:03,040 --> 00:12:06,800 Speaker 1: listed a whole lot of precedents that the Court had overturned, 195 00:12:06,840 --> 00:12:09,280 Speaker 1: and he talked about things like Brown versus Board of 196 00:12:09,400 --> 00:12:13,240 Speaker 1: Education and the Berga fell gave marriage decision as big 197 00:12:13,400 --> 00:12:19,160 Speaker 1: rulings that overturned precedents and uh suggesting that overruling Row 198 00:12:19,240 --> 00:12:22,320 Speaker 1: would would just be another case along those lines. After 199 00:12:22,400 --> 00:12:26,400 Speaker 1: hearing the oral arguments, what's your best guests about how 200 00:12:26,440 --> 00:12:29,760 Speaker 1: this will come out? For starters, it's very clear they're 201 00:12:29,760 --> 00:12:32,880 Speaker 1: going to uphold the Mississippi law. The question is whether 202 00:12:32,920 --> 00:12:36,400 Speaker 1: they will go further and overturn Row on that, it's 203 00:12:36,440 --> 00:12:38,640 Speaker 1: hard to say for sure. Based on what we heard 204 00:12:38,640 --> 00:12:41,000 Speaker 1: in the argument, it sounds like there might well be 205 00:12:41,080 --> 00:12:44,400 Speaker 1: five votes to do that, including Kavanaugh and Barrett. The 206 00:12:44,480 --> 00:12:47,240 Speaker 1: question will be when push comes to shove, if John 207 00:12:47,320 --> 00:12:50,240 Speaker 1: Roberts wants to write a narrower opinion that doesn't go 208 00:12:50,400 --> 00:12:53,840 Speaker 1: that far, will somebody like Brett Kavanaugh decided he's going 209 00:12:53,880 --> 00:12:56,640 Speaker 1: to go along with the Chief and save the bigger 210 00:12:56,720 --> 00:12:59,600 Speaker 1: ruling for later on that it's really too hard to say. 211 00:13:00,000 --> 00:13:02,480 Speaker 1: Thanks for being in the Bloomberg Lawn Show, Greg, that's 212 00:13:02,480 --> 00:13:08,800 Speaker 1: Bloomberg News Supreme Court reporter Greg Store. The best protection. 213 00:13:08,840 --> 00:13:11,199 Speaker 1: I know you're tired of me saying this the best 214 00:13:11,200 --> 00:13:14,400 Speaker 1: protection against this new variant or any of the of 215 00:13:14,480 --> 00:13:17,040 Speaker 1: the various out there. But once we've been dealing with 216 00:13:17,080 --> 00:13:22,360 Speaker 1: already is getting fully vaccinated and getting a booster shot. 217 00:13:23,160 --> 00:13:27,479 Speaker 1: President Biden has been consistent in his message about vaccines, 218 00:13:27,960 --> 00:13:31,520 Speaker 1: but his vaccine mandates are facing problems in the courts. 219 00:13:32,000 --> 00:13:36,200 Speaker 1: About seventeen million healthcare workers are fighting the pandemic from 220 00:13:36,240 --> 00:13:40,120 Speaker 1: the front lines, and the Biden administration has mandated that 221 00:13:40,160 --> 00:13:44,040 Speaker 1: they must be vaccinated by January four, But more than 222 00:13:44,080 --> 00:13:47,880 Speaker 1: half the states are involved in legal challenges to that mandate, 223 00:13:48,240 --> 00:13:51,000 Speaker 1: and in the first victory for opponents of the mandate, 224 00:13:51,320 --> 00:13:55,240 Speaker 1: a federal court and Missouri blocked the administration from enforcing 225 00:13:55,280 --> 00:13:59,200 Speaker 1: it intense states. My guest is Robert Field, a professor 226 00:13:59,240 --> 00:14:02,680 Speaker 1: of law and public health at Drexel University. It's the 227 00:14:02,760 --> 00:14:08,120 Speaker 1: first victory for opponents of the vaccine mandate for health workers. 228 00:14:08,160 --> 00:14:11,080 Speaker 1: So why did a federal court in Missouri block the 229 00:14:11,160 --> 00:14:16,360 Speaker 1: Biden administration from enforcing the mandate. That mandate is issued 230 00:14:16,400 --> 00:14:20,200 Speaker 1: through the Center for Medicare and Medicaid Services, which runs 231 00:14:20,360 --> 00:14:24,520 Speaker 1: Medicare and Medicaid, and the court felt that it overstepped 232 00:14:24,600 --> 00:14:29,119 Speaker 1: its authority in requiring that hospitals that accept those programs 233 00:14:29,320 --> 00:14:32,640 Speaker 1: imposed a vaccine mandate on their workers. It felt that 234 00:14:32,680 --> 00:14:37,400 Speaker 1: this was federal overreach that it goes beyond what Congress 235 00:14:37,480 --> 00:14:40,640 Speaker 1: authorized the agency to do. The court also went into 236 00:14:40,680 --> 00:14:44,880 Speaker 1: some of the policy aspects, which is not really appropriate 237 00:14:44,960 --> 00:14:48,280 Speaker 1: for a legal review, and said it will cause people 238 00:14:48,320 --> 00:14:51,320 Speaker 1: to avoid healthcare jobs and it will cost a large 239 00:14:51,320 --> 00:14:55,600 Speaker 1: amount of money to administer. So now a federal judge 240 00:14:55,600 --> 00:14:59,720 Speaker 1: in Florida declined to block the rule in a separate 241 00:14:59,760 --> 00:15:04,360 Speaker 1: sy So we're in a funny legal world in terms 242 00:15:04,440 --> 00:15:09,000 Speaker 1: of the mandates of whack a mole, where different courts 243 00:15:09,000 --> 00:15:12,840 Speaker 1: are whacking different legal moles as the cases come up. 244 00:15:13,400 --> 00:15:17,320 Speaker 1: Only the Supreme Court is really in a position to 245 00:15:17,400 --> 00:15:21,520 Speaker 1: speak definitively to this issue. Until they do, it's going 246 00:15:21,560 --> 00:15:26,240 Speaker 1: to be different district courts which have limited geographic scope, 247 00:15:26,360 --> 00:15:30,880 Speaker 1: and appeals courts that have limited geographic scope. None of 248 00:15:30,920 --> 00:15:34,920 Speaker 1: them has the final say until the Supreme Court speaks. 249 00:15:35,000 --> 00:15:38,440 Speaker 1: So it's not unusual in a case like this with 250 00:15:38,680 --> 00:15:43,560 Speaker 1: national litigation to see different opinions from different courts. So 251 00:15:43,640 --> 00:15:48,120 Speaker 1: that means that, for example, healthcare workers intense states, according 252 00:15:48,160 --> 00:15:52,120 Speaker 1: to this decision, don't have to abide by the mandate, 253 00:15:52,280 --> 00:15:56,080 Speaker 1: but healthcare workers in other states do For the time being, 254 00:15:56,400 --> 00:15:59,240 Speaker 1: they don't do abide by the mandate until there's been 255 00:15:59,280 --> 00:16:02,760 Speaker 1: a final rule in the case. It's a temporary injunction, 256 00:16:03,080 --> 00:16:06,480 Speaker 1: so it's not as though it will never apply to them, 257 00:16:06,520 --> 00:16:08,960 Speaker 1: But in terms of the Missouri ruling, it could be 258 00:16:09,080 --> 00:16:12,960 Speaker 1: reversed after the court he fully hears all the arguments 259 00:16:13,080 --> 00:16:16,800 Speaker 1: and makes a definitive decision. This is a temporary injunction, 260 00:16:17,280 --> 00:16:21,720 Speaker 1: and given the fast moving and emergency nature of a 261 00:16:21,760 --> 00:16:25,120 Speaker 1: lot of these laws, we're seeing a lot of courts 262 00:16:25,160 --> 00:16:29,560 Speaker 1: issuing temporary injunctions, not waiting the weeks or months that 263 00:16:29,640 --> 00:16:32,920 Speaker 1: it might take to have the case fully argued, to 264 00:16:32,960 --> 00:16:35,360 Speaker 1: have the briefs written and the oral arguments made in 265 00:16:35,600 --> 00:16:38,320 Speaker 1: a full decision written, which is one of the reasons 266 00:16:38,400 --> 00:16:41,680 Speaker 1: we're seeing so many different decisions because courts are acting 267 00:16:41,760 --> 00:16:46,800 Speaker 1: quickly to either strike down mandates or temporarily uphold them. 268 00:16:46,840 --> 00:16:51,680 Speaker 1: In neither of those cases are we seeing fully fleshed out, 269 00:16:51,800 --> 00:16:56,240 Speaker 1: reasoned decisions, which should be the basis of president So, 270 00:16:56,600 --> 00:17:00,800 Speaker 1: in your opinion, which judge is correct? Is it the 271 00:17:00,880 --> 00:17:03,520 Speaker 1: judge in Florida who didn't block it or the judge 272 00:17:03,520 --> 00:17:06,119 Speaker 1: in Missouri who did block it. Well, I can give 273 00:17:06,160 --> 00:17:10,280 Speaker 1: you my opinion, Um, But whether Um Supreme court would 274 00:17:10,320 --> 00:17:12,800 Speaker 1: agree with it. I guess we'll find out at some point. 275 00:17:13,320 --> 00:17:17,000 Speaker 1: I think the mandate for healthcare workers rest on pretty 276 00:17:17,000 --> 00:17:21,680 Speaker 1: solid legal ground. It's tied to Medicare and Medicaid, primarily 277 00:17:21,720 --> 00:17:24,720 Speaker 1: to Medicare, and what it does is it adds a 278 00:17:24,760 --> 00:17:28,280 Speaker 1: condition of participation. If a hospital or another care care 279 00:17:28,359 --> 00:17:32,880 Speaker 1: facility wants to be eligible to receive Medicare reimbursement, it 280 00:17:32,920 --> 00:17:35,800 Speaker 1: has to meet various requirements, and there are hundreds of 281 00:17:35,800 --> 00:17:39,800 Speaker 1: pages of regulations setting forth those requirements. So, for instance, 282 00:17:39,840 --> 00:17:43,639 Speaker 1: it has to have properly licensed staff, it has to 283 00:17:43,680 --> 00:17:47,800 Speaker 1: be properly accredited UH, it has to meet various quality 284 00:17:47,880 --> 00:17:52,040 Speaker 1: control standards under the Affordable Care Act. It has to 285 00:17:52,080 --> 00:18:00,520 Speaker 1: meet standards for reporting safety lapses, readmissions after surgery, mortality, 286 00:18:00,600 --> 00:18:06,399 Speaker 1: morbidity rates for certain procedures. Um. There are, as I said, 287 00:18:06,480 --> 00:18:11,280 Speaker 1: pages and pages of requirements. This is adding to those requirements, 288 00:18:11,320 --> 00:18:14,040 Speaker 1: but there's never been a question up to now about 289 00:18:14,280 --> 00:18:18,840 Speaker 1: CMSs authority to issue them. What is a bit different 290 00:18:19,160 --> 00:18:22,440 Speaker 1: is this is issued on an emergency basis, and while 291 00:18:22,920 --> 00:18:26,880 Speaker 1: the courts are acting quickly to either issue or deny injunctions, 292 00:18:27,119 --> 00:18:30,639 Speaker 1: CMS as well as OSHA for the larger mandate have 293 00:18:30,760 --> 00:18:35,080 Speaker 1: acted very quickly without the usual rulemaking process, which can 294 00:18:35,119 --> 00:18:39,000 Speaker 1: take months or years to publish a proposed rule, solicit 295 00:18:39,040 --> 00:18:43,280 Speaker 1: comments from interested parties, revisit the rule, publish it again, 296 00:18:44,000 --> 00:18:48,159 Speaker 1: publish a preamble that explains all of its thinking and 297 00:18:48,240 --> 00:18:52,960 Speaker 1: analysis UH and then making a final rule. So one 298 00:18:52,960 --> 00:18:56,520 Speaker 1: of the distinctions here that a court could make is 299 00:18:56,640 --> 00:19:00,639 Speaker 1: the speed with which um CMS acted and the lack 300 00:19:00,760 --> 00:19:05,000 Speaker 1: of the full fleshed out procedure. The judge in Missouri 301 00:19:05,280 --> 00:19:08,159 Speaker 1: said that this is not really an emergency and it 302 00:19:08,200 --> 00:19:11,600 Speaker 1: didn't call for their emergency powers and said, well, when 303 00:19:11,640 --> 00:19:15,159 Speaker 1: will we stop treating COVID as emergency? I would say 304 00:19:15,240 --> 00:19:18,680 Speaker 1: when thousands of people stopped dying every day of the disease, 305 00:19:18,760 --> 00:19:22,359 Speaker 1: it will no longer be an emergency. The court didn't 306 00:19:22,440 --> 00:19:27,600 Speaker 1: find that very convincing. Um So, if you accept that 307 00:19:27,640 --> 00:19:31,520 Speaker 1: this is an emergency, and I certainly believe COVID, especially 308 00:19:31,560 --> 00:19:34,879 Speaker 1: with the new variance, as an emergency, then that would 309 00:19:34,960 --> 00:19:40,320 Speaker 1: justify CMSs use of its emergency powers just looking down 310 00:19:40,400 --> 00:19:45,199 Speaker 1: the road. If after trial, this injunction is still in 311 00:19:45,280 --> 00:19:48,400 Speaker 1: place and it's appealed, it would go to the Eighth Circuit, 312 00:19:48,840 --> 00:19:53,760 Speaker 1: which has one active or senior status judge appointed by 313 00:19:53,880 --> 00:19:58,120 Speaker 1: a Democratic president. Out of fourteen, the one in Florida 314 00:19:58,200 --> 00:20:02,720 Speaker 1: would go to the leventh Circuit, which is also very conservative, 315 00:20:03,320 --> 00:20:07,080 Speaker 1: So you could end up with two conservative courts hearing 316 00:20:07,119 --> 00:20:11,439 Speaker 1: this and possibly agreeing. Would the Supreme Court still you 317 00:20:11,520 --> 00:20:15,399 Speaker 1: think take a case. My guess, and it's a guess, 318 00:20:15,480 --> 00:20:18,639 Speaker 1: is that they would because it's such an important issue 319 00:20:18,680 --> 00:20:21,920 Speaker 1: that they would want to resolve it with finality. Typically 320 00:20:21,960 --> 00:20:24,119 Speaker 1: they would take a case when there's a split between 321 00:20:24,160 --> 00:20:29,240 Speaker 1: the circuits, But when there's something this important, where president 322 00:20:29,440 --> 00:20:32,680 Speaker 1: is needed for this pandemic and possibly the next one, 323 00:20:33,240 --> 00:20:35,639 Speaker 1: I would think that the Supreme Court would want to 324 00:20:35,680 --> 00:20:39,840 Speaker 1: step in. With regard to Biden's mandate for large employers, 325 00:20:40,440 --> 00:20:42,680 Speaker 1: we've already resolved that it's going to be the sixth 326 00:20:42,720 --> 00:20:44,919 Speaker 1: Circuit that's going to make the decision for all the 327 00:20:44,960 --> 00:20:48,520 Speaker 1: circuits through the Ping pong ball lottery, So in that case, 328 00:20:48,560 --> 00:20:51,879 Speaker 1: the Supreme Court would not use a split between the 329 00:20:51,880 --> 00:20:54,960 Speaker 1: circuits to step in, but I think there as well, 330 00:20:55,400 --> 00:20:59,440 Speaker 1: it would use its authority to define what the law is, 331 00:20:59,520 --> 00:21:03,320 Speaker 1: so the officials going forward have some sense of what 332 00:21:03,359 --> 00:21:05,760 Speaker 1: they can and can't do, and there will probably be 333 00:21:05,960 --> 00:21:08,879 Speaker 1: splits in the circuits at some point so that the 334 00:21:08,920 --> 00:21:13,160 Speaker 1: Supreme Court will review the issue. Yeah, it's likely there 335 00:21:13,200 --> 00:21:16,399 Speaker 1: will be. I guess the one issue that would be 336 00:21:16,440 --> 00:21:20,000 Speaker 1: concerning in terms of the legal terrain is if the 337 00:21:20,000 --> 00:21:22,800 Speaker 1: Supreme Court uses what's become known as the shadow docket. 338 00:21:23,359 --> 00:21:26,320 Speaker 1: Rather than issuing a full decision, they issue a temporary 339 00:21:26,440 --> 00:21:30,520 Speaker 1: order either striking down or upholding an injunction, and then 340 00:21:30,840 --> 00:21:34,840 Speaker 1: wait months or years before actually considering the merits of 341 00:21:34,840 --> 00:21:38,080 Speaker 1: the case. But I do think this is important enough 342 00:21:38,160 --> 00:21:42,399 Speaker 1: and guidance is so desperately needed that the Court would 343 00:21:42,400 --> 00:21:44,800 Speaker 1: step in. It seemed as if we were looking at, 344 00:21:44,880 --> 00:21:47,159 Speaker 1: you know, light at the end of the tunnel. And 345 00:21:47,240 --> 00:21:52,000 Speaker 1: so maybe these vaccine mandates weren't as important as they 346 00:21:52,040 --> 00:21:54,600 Speaker 1: were six months a year ago. But now that there's 347 00:21:54,600 --> 00:21:59,000 Speaker 1: a new variant, does that add another dimension of urgency 348 00:21:59,440 --> 00:22:04,040 Speaker 1: to this? Yeah, well, in theory it does. But it's 349 00:22:04,080 --> 00:22:07,400 Speaker 1: too new to really know how effective the vaccines are 350 00:22:08,000 --> 00:22:11,840 Speaker 1: um so it will take some time, at least a 351 00:22:11,880 --> 00:22:15,800 Speaker 1: few weeks to have a sense of whether more vaccination 352 00:22:15,960 --> 00:22:19,880 Speaker 1: will help. But clearly the more people who are vaccinated, 353 00:22:19,920 --> 00:22:23,960 Speaker 1: the less chance the virus has to mutate and develop 354 00:22:24,040 --> 00:22:28,360 Speaker 1: new strains. Uh we first noticed this variant in South Africa. 355 00:22:28,960 --> 00:22:32,479 Speaker 1: Africa has a very low vaccination rates, so it's not 356 00:22:32,560 --> 00:22:36,360 Speaker 1: surprising that that would be a wonderful incubator for new 357 00:22:36,480 --> 00:22:41,560 Speaker 1: vaccine strains. Um. I think that the idea that new 358 00:22:41,640 --> 00:22:46,280 Speaker 1: variants can pop up at any time without warning should 359 00:22:46,320 --> 00:22:49,480 Speaker 1: give a greater sense of urgency to getting our vaccine 360 00:22:49,560 --> 00:22:53,639 Speaker 1: rates up as high as possible, possibly high enough to 361 00:22:53,760 --> 00:22:57,720 Speaker 1: achieve her immunity where the virus can't get a toe 362 00:22:57,720 --> 00:23:02,040 Speaker 1: hold in the population. Turning to the Sixth Circuit, which, 363 00:23:02,160 --> 00:23:06,000 Speaker 1: as you said, has all the consolidated cases on the 364 00:23:06,040 --> 00:23:11,280 Speaker 1: mandate for large employers. Several states with Republican attorneys general, 365 00:23:11,440 --> 00:23:15,720 Speaker 1: the Republican National Committee, various companies, and other groups have 366 00:23:16,000 --> 00:23:20,640 Speaker 1: asked that court to have an on bank review before 367 00:23:21,280 --> 00:23:24,840 Speaker 1: a three judge panel. Why would they want that? Is 368 00:23:24,880 --> 00:23:29,520 Speaker 1: that ever done? It's done when you have a decision 369 00:23:29,760 --> 00:23:33,480 Speaker 1: by one judge or by a panel, to have every 370 00:23:33,600 --> 00:23:37,320 Speaker 1: judge on that circuit court decide. I don't know what 371 00:23:37,359 --> 00:23:41,000 Speaker 1: the reasoning is. My guess is that if the entire 372 00:23:41,160 --> 00:23:44,760 Speaker 1: court were to hear the case and rule against the mandate, 373 00:23:44,920 --> 00:23:46,800 Speaker 1: they'd be in a stronger position when it comes to 374 00:23:46,840 --> 00:23:51,600 Speaker 1: the Supreme Court, because the Biden administration has file papers 375 00:23:51,640 --> 00:23:54,840 Speaker 1: saying that they should not. What they would be doing 376 00:23:54,920 --> 00:23:57,800 Speaker 1: is bypassing the three judge panel and going right to 377 00:23:57,880 --> 00:24:02,080 Speaker 1: the full circuit. And that's out of the normal procedure. 378 00:24:02,160 --> 00:24:06,040 Speaker 1: So the Biden administration is arguing against that. Is the 379 00:24:06,040 --> 00:24:09,680 Speaker 1: Biden administration also just looking for time. Well, they may 380 00:24:09,680 --> 00:24:13,040 Speaker 1: be um Also, it's a court this is heavily dominated 381 00:24:13,040 --> 00:24:17,119 Speaker 1: by Republican appointees, so there's a greater chance of getting 382 00:24:17,119 --> 00:24:20,199 Speaker 1: some Democrats on the free judge panel than there is 383 00:24:20,240 --> 00:24:24,320 Speaker 1: of getting a democratic majority on the full em Bank panel. 384 00:24:25,080 --> 00:24:29,640 Speaker 1: They've received petitions to transfer the case to other circuits. 385 00:24:30,160 --> 00:24:33,760 Speaker 1: Is there any reason why a circuit would say, no, 386 00:24:34,040 --> 00:24:37,359 Speaker 1: let this other circuit take this over. We can't handle it. 387 00:24:37,520 --> 00:24:40,080 Speaker 1: Asking a sixth circuit to send it to another circuit 388 00:24:40,640 --> 00:24:44,400 Speaker 1: it seems to me like a fool's Errand there's uh 389 00:24:44,600 --> 00:24:49,159 Speaker 1: strategy often used in litigation of throwing as many arguments 390 00:24:49,200 --> 00:24:51,359 Speaker 1: as you can against the wall and seeing what would stick. 391 00:24:52,200 --> 00:24:56,320 Speaker 1: So there's a fairly minimal cost to throwing those arguments out. 392 00:24:57,280 --> 00:25:01,040 Speaker 1: My guess is that they don't really expect to succeed 393 00:25:01,080 --> 00:25:04,440 Speaker 1: in that. I think the Sixth Circuit of My guess 394 00:25:04,440 --> 00:25:06,439 Speaker 1: as the judges are very happy to have the case 395 00:25:06,880 --> 00:25:09,120 Speaker 1: and to leave their imprint in this area of the law. 396 00:25:09,520 --> 00:25:14,600 Speaker 1: So let's turn to yet another lawsuit over vaccine mandates, 397 00:25:14,680 --> 00:25:17,560 Speaker 1: and there are certainly plenty of them to discuss. So 398 00:25:17,680 --> 00:25:21,800 Speaker 1: New York City's COVID vaccine mandate there's a religious challenge 399 00:25:21,880 --> 00:25:26,120 Speaker 1: by fifteen public school teachers and administrators. So what did 400 00:25:26,119 --> 00:25:30,920 Speaker 1: the arbitrator rule here? So the ruling was that if 401 00:25:30,920 --> 00:25:34,960 Speaker 1: you're gonna claim a religious exemption, it has to be 402 00:25:35,000 --> 00:25:39,200 Speaker 1: through a recognized religion, and if the leader or top 403 00:25:39,440 --> 00:25:43,800 Speaker 1: clergy in that religion have come up in favor of vaccines, 404 00:25:44,200 --> 00:25:48,320 Speaker 1: that your objection could not be sincere and therefore not legitimate. 405 00:25:48,680 --> 00:25:53,920 Speaker 1: That seems like a very radical approach. Well, the sincerity 406 00:25:53,960 --> 00:25:59,879 Speaker 1: of a religious objection is important because we don't want 407 00:26:00,080 --> 00:26:06,359 Speaker 1: allow sham contrived religious beliefs to counteract public policy. But 408 00:26:06,520 --> 00:26:09,439 Speaker 1: it's very difficult to draw that line. Some when is 409 00:26:09,480 --> 00:26:15,080 Speaker 1: someone genuinely expressing a sincerely, deeply held religious belief and 410 00:26:15,160 --> 00:26:17,120 Speaker 1: when are they just trying to do an end run 411 00:26:17,840 --> 00:26:20,679 Speaker 1: around a vaccine mandate. That would be one way of 412 00:26:20,680 --> 00:26:23,240 Speaker 1: doing it, saying you can't just make up your religion 413 00:26:23,240 --> 00:26:27,880 Speaker 1: on the spot. The Supreme Court, the conservative majority there, 414 00:26:27,920 --> 00:26:31,600 Speaker 1: seems more sympathetic to the argument that you can make 415 00:26:31,600 --> 00:26:33,520 Speaker 1: it up on the spot. The Second Circuit in the 416 00:26:33,560 --> 00:26:37,280 Speaker 1: New York City case seemed more sympathetic to that argument 417 00:26:37,600 --> 00:26:42,280 Speaker 1: that you can't challenge someone's belief because another member of 418 00:26:42,320 --> 00:26:46,000 Speaker 1: their religion doesn't accept it, even a leader their religion 419 00:26:46,080 --> 00:26:49,919 Speaker 1: doesn't accept it. You have to take each person on 420 00:26:49,960 --> 00:26:53,680 Speaker 1: their own. But there was one employee who was identified 421 00:26:53,720 --> 00:26:58,159 Speaker 1: as Roman Catholic that was granted an exemption despite the 422 00:26:58,200 --> 00:27:03,840 Speaker 1: fact that the pope has been in support of vaccinations. Well, 423 00:27:03,880 --> 00:27:07,760 Speaker 1: I think that gets to the argument that you can't 424 00:27:07,760 --> 00:27:11,440 Speaker 1: base the sincerity of your belief on what other members 425 00:27:11,440 --> 00:27:16,119 Speaker 1: of the religion belief. Um Now, the divine authority of 426 00:27:16,160 --> 00:27:18,919 Speaker 1: the pope, the belief in the divine authority of the 427 00:27:19,000 --> 00:27:22,600 Speaker 1: Pope is stronger than in the respect given to the 428 00:27:22,680 --> 00:27:25,600 Speaker 1: leaders of many other religions. But it would come under 429 00:27:25,640 --> 00:27:30,040 Speaker 1: that reasoning that your interpretation of your religion is what controls, 430 00:27:30,560 --> 00:27:34,040 Speaker 1: not what a member of the clergy, leader of the clergy, 431 00:27:34,200 --> 00:27:37,639 Speaker 1: or fellow members of the religion belief. So the Second 432 00:27:37,680 --> 00:27:41,879 Speaker 1: Circuit's concerns were with First Amendment issues. Yeah, so that 433 00:27:41,920 --> 00:27:44,159 Speaker 1: would be a matter of freedom of religion. That's been 434 00:27:44,200 --> 00:27:48,840 Speaker 1: authority issue UM all along. The Supreme Court held that 435 00:27:48,880 --> 00:27:55,359 Speaker 1: case was held that religious exemptions to compelling public policy 436 00:27:55,760 --> 00:27:59,920 Speaker 1: need not be granted, and so religious exemptions to vaccine 437 00:28:00,119 --> 00:28:05,000 Speaker 1: mandates are not constitutionally required. So I don't really understand 438 00:28:05,320 --> 00:28:08,639 Speaker 1: what the President is here. It's possible the Spring Court 439 00:28:08,680 --> 00:28:12,639 Speaker 1: will get this case and then decide to overrule that precedent. 440 00:28:13,520 --> 00:28:18,480 Speaker 1: But with regard to school mandates, religious exemptions are not required, 441 00:28:18,520 --> 00:28:21,880 Speaker 1: and there are now five states that don't permit them. 442 00:28:22,200 --> 00:28:29,080 Speaker 1: School children have to be vaccinated to attend school UM. West, Virginia, Mississippi, California, Maine, 443 00:28:29,119 --> 00:28:33,040 Speaker 1: New York, and Connecticut have repealed them. And in another 444 00:28:33,080 --> 00:28:38,240 Speaker 1: case involving a religious exemption, Justice Stephen Bryan turned away 445 00:28:38,240 --> 00:28:42,040 Speaker 1: a request from eight mass General Brigham workers for a 446 00:28:42,120 --> 00:28:46,680 Speaker 1: religious exemption from the Massachusetts Hospital Systems requirement that they 447 00:28:46,760 --> 00:28:51,040 Speaker 1: be vaccinated. Ria rejected that without requesting a response from 448 00:28:51,080 --> 00:28:54,240 Speaker 1: the hospital or referring the matter to the full court. 449 00:28:54,920 --> 00:28:59,480 Speaker 1: It's not unusual, UM, there are cases where a justice 450 00:28:59,720 --> 00:29:03,880 Speaker 1: would um request a fuller examination. But this is an 451 00:29:03,920 --> 00:29:07,880 Speaker 1: emergency order they're asking for. And you know, the way 452 00:29:07,920 --> 00:29:12,640 Speaker 1: the Supreme Court works is each justice is assigned geographic 453 00:29:12,760 --> 00:29:18,400 Speaker 1: territory to handle emergency requests, and they have a fair 454 00:29:18,440 --> 00:29:22,520 Speaker 1: amount of latitude. The plaintiffs could appeal to the full 455 00:29:22,640 --> 00:29:26,640 Speaker 1: Court to review what he has done, but it's not 456 00:29:26,840 --> 00:29:30,840 Speaker 1: unusual for for the justice in charge of a region 457 00:29:32,000 --> 00:29:36,560 Speaker 1: to either accept or deny a request for an emergency 458 00:29:36,720 --> 00:29:41,080 Speaker 1: order on their own. And so so far, the justices 459 00:29:41,160 --> 00:29:46,040 Speaker 1: haven't second guest vaccine requirements, but there were two There 460 00:29:46,040 --> 00:29:51,840 Speaker 1: are two cases before the court Maine in New York, right, 461 00:29:52,000 --> 00:29:55,240 Speaker 1: So in the main case, they have not issued a 462 00:29:55,360 --> 00:30:00,200 Speaker 1: final decision. Uh, it stays in effect pending the the 463 00:30:00,240 --> 00:30:04,959 Speaker 1: full litigation, and it is possible that the conservative justices 464 00:30:05,080 --> 00:30:09,560 Speaker 1: will decide that a religious exemption is required. Um. But 465 00:30:09,840 --> 00:30:13,560 Speaker 1: they did not. Um. I'm trying to remember. I think 466 00:30:13,600 --> 00:30:18,720 Speaker 1: the vote was six to three. They did not require 467 00:30:18,960 --> 00:30:23,160 Speaker 1: that it be put on hold pending the full consideration 468 00:30:23,160 --> 00:30:26,520 Speaker 1: of the lawsuit. I guess you can't blame people for 469 00:30:26,600 --> 00:30:31,240 Speaker 1: being confused about these vaccine mandates because there seemed to 470 00:30:31,240 --> 00:30:35,480 Speaker 1: be different interpretations of the different mandates. I think part 471 00:30:35,480 --> 00:30:38,720 Speaker 1: of the confusion is that we're seeing a skyder shot 472 00:30:38,720 --> 00:30:43,560 Speaker 1: of cases across the country, and we're seeing different decisions, 473 00:30:44,000 --> 00:30:47,640 Speaker 1: some based on the law and some based on politics. 474 00:30:48,440 --> 00:30:53,120 Speaker 1: And so there's um and we're seeing new terrain with 475 00:30:53,120 --> 00:30:56,600 Speaker 1: with these mandates. We've spent well over a hundred years 476 00:30:57,120 --> 00:31:00,960 Speaker 1: UM hashing out school mandates, and that law seemed to 477 00:31:01,000 --> 00:31:05,720 Speaker 1: be pretty settled. But broader mandates for broader swaths of 478 00:31:05,760 --> 00:31:12,840 Speaker 1: the population, that's new. Uh And it does raise greater sensitivities, 479 00:31:13,560 --> 00:31:17,680 Speaker 1: and so it's not surprising we have inconsistent decisions. I 480 00:31:17,720 --> 00:31:21,600 Speaker 1: should add, though, that the school mandates as a political 481 00:31:21,640 --> 00:31:26,400 Speaker 1: and ideological matter, are not resolved. There's still a very 482 00:31:26,400 --> 00:31:29,400 Speaker 1: strong anti vax movement. There are still a lot of 483 00:31:29,440 --> 00:31:33,760 Speaker 1: parents who try to get whatever exemptions they can UM, 484 00:31:33,800 --> 00:31:37,840 Speaker 1: who try to delay the vaccines, who homeschool their children 485 00:31:38,160 --> 00:31:41,640 Speaker 1: so they won't have to comply with the public school 486 00:31:41,640 --> 00:31:45,960 Speaker 1: attendance rules. UH. So that is still a controversial issue. 487 00:31:46,240 --> 00:31:51,000 Speaker 1: And of course we have the anti vax um misinformation, 488 00:31:51,600 --> 00:31:55,560 Speaker 1: for instance, that autism is caused by various vaccines or 489 00:31:56,240 --> 00:32:00,600 Speaker 1: other kinds of neurological injury, for which they really is evidence. 490 00:32:01,200 --> 00:32:05,840 Speaker 1: So if there's no religious exemption from vaccine mandates. What 491 00:32:06,000 --> 00:32:10,480 Speaker 1: exemption from vaccine mandates is there. There will always be 492 00:32:10,520 --> 00:32:14,920 Speaker 1: an exemption for medical reasons. And the basic Supreme Court 493 00:32:15,000 --> 00:32:21,400 Speaker 1: case that upheld mandates dates from nine five uh smallpox 494 00:32:21,520 --> 00:32:26,520 Speaker 1: vaccine mandate in Massachusetts in response to an epidemic. The 495 00:32:26,600 --> 00:32:30,800 Speaker 1: court said that you cannot impose a mandate if it's 496 00:32:30,840 --> 00:32:34,320 Speaker 1: likely to cause medical harm to the person. So that's 497 00:32:34,320 --> 00:32:38,080 Speaker 1: been incorporated into every mandate law sinse. But it did 498 00:32:38,120 --> 00:32:43,040 Speaker 1: not say any other kind of exemption was required. Um 499 00:32:43,520 --> 00:32:49,040 Speaker 1: for the COVID vaccines, there's a very narrow um range 500 00:32:49,280 --> 00:32:53,120 Speaker 1: of conditions that could make you vulnerable. People who have 501 00:32:53,160 --> 00:32:57,400 Speaker 1: had one shot and reacted anaphylactically, or had another kind 502 00:32:57,440 --> 00:33:02,840 Speaker 1: of allergic reaction, um and kinds of autoimmune conditions. So 503 00:33:02,920 --> 00:33:07,440 Speaker 1: if you have one of those, then you can it's 504 00:33:07,560 --> 00:33:11,840 Speaker 1: constitutionally required that you're granted an exemption. But that's not 505 00:33:11,840 --> 00:33:14,440 Speaker 1: going to cover a lot of people. Thanks so much 506 00:33:14,480 --> 00:33:17,560 Speaker 1: for being on the show. That's Robert Field, a professor 507 00:33:17,600 --> 00:33:22,800 Speaker 1: of law and public health at Drexel University. Jacob chans Lee, 508 00:33:23,120 --> 00:33:25,960 Speaker 1: known as the Q and on Shaman, he's appealing his 509 00:33:26,080 --> 00:33:28,720 Speaker 1: sentence of more than three years for his role in 510 00:33:28,760 --> 00:33:32,480 Speaker 1: the January six Capital riot. Joining me is Bloomberg Legal 511 00:33:32,520 --> 00:33:36,840 Speaker 1: reporter David Yaffe Beleny tell us about the charges against 512 00:33:36,920 --> 00:33:40,640 Speaker 1: him and what happened. So, the charges against Jacob Chansley 513 00:33:40,680 --> 00:33:43,000 Speaker 1: are similar to the charges that have been filed against 514 00:33:43,000 --> 00:33:45,239 Speaker 1: many of the rioters. He entered the building in an 515 00:33:45,320 --> 00:33:49,280 Speaker 1: unauthorized way, He obstructed an official of proceeding. He pleaded 516 00:33:49,280 --> 00:33:51,600 Speaker 1: guilty to that. The big difference between him and some 517 00:33:51,680 --> 00:33:53,600 Speaker 1: of the other rioters. It's just been the sort of 518 00:33:53,680 --> 00:33:57,200 Speaker 1: notoriety that he managed to establish in the hours after 519 00:33:57,240 --> 00:34:00,520 Speaker 1: the riot, partly because he showed up shirtless two with 520 00:34:00,600 --> 00:34:04,320 Speaker 1: this horned headdress as he walked into the Senate chamber. 521 00:34:04,440 --> 00:34:07,280 Speaker 1: So in some ways he's not a particularly notable January 522 00:34:07,320 --> 00:34:10,680 Speaker 1: six defendant, but he has this kind of symbolic importance 523 00:34:10,760 --> 00:34:14,400 Speaker 1: that was established very early on. So he was sentenced 524 00:34:14,640 --> 00:34:18,200 Speaker 1: to forty one months. The sentencing earlier months. He got 525 00:34:18,200 --> 00:34:20,680 Speaker 1: forty one months, which is the joint longest sentence that 526 00:34:21,120 --> 00:34:23,600 Speaker 1: a writer has gotten so far. I mean, not many 527 00:34:23,640 --> 00:34:26,359 Speaker 1: of them have been sentenced, but that's currently the sort 528 00:34:26,360 --> 00:34:28,960 Speaker 1: of top tier of sentence that we've seen so far. 529 00:34:29,280 --> 00:34:32,640 Speaker 1: He gave a very long, rambling and unusual address to 530 00:34:32,680 --> 00:34:35,560 Speaker 1: the judge in that case, in which he expressed remorse 531 00:34:35,719 --> 00:34:39,680 Speaker 1: and talked about his admiration for Mahatma Gandhi and other 532 00:34:39,760 --> 00:34:42,600 Speaker 1: historical figures. It was very much in keeping with the 533 00:34:42,760 --> 00:34:46,120 Speaker 1: sort of strange public persona that he's cultivated over the 534 00:34:46,160 --> 00:34:48,800 Speaker 1: past year, and that seems like it was going to 535 00:34:48,880 --> 00:34:50,840 Speaker 1: be the end of it. The judge said, what you 536 00:34:50,920 --> 00:34:55,000 Speaker 1: did here was horrific, and also the prosecutor characterized that 537 00:34:55,120 --> 00:34:59,319 Speaker 1: note that he left for Vice President pens as a threat. So, 538 00:34:59,520 --> 00:35:02,319 Speaker 1: I mean, isn't just him running through the capital. Yes, 539 00:35:02,440 --> 00:35:04,719 Speaker 1: I mean he hasn't been accused of violence, which is 540 00:35:04,719 --> 00:35:07,440 Speaker 1: a major difference between the charges that he's facing him 541 00:35:07,440 --> 00:35:10,439 Speaker 1: what some of the more serious riot cases involved. But yes, 542 00:35:10,480 --> 00:35:12,760 Speaker 1: he left a note on the daist that Mike Pence 543 00:35:12,800 --> 00:35:15,760 Speaker 1: had just deserted that read it's only a matter of time. 544 00:35:16,040 --> 00:35:19,360 Speaker 1: Justice is coming. His lawyer argued that that wasn't actually 545 00:35:19,360 --> 00:35:22,320 Speaker 1: a threat. The prosecutors argued that it was a violent 546 00:35:22,320 --> 00:35:24,799 Speaker 1: threat to tense that was clear because of the context 547 00:35:24,840 --> 00:35:26,799 Speaker 1: of what was going on. So there's been a lot 548 00:35:26,800 --> 00:35:28,920 Speaker 1: of arguments back and forth about that. But yeah, that 549 00:35:29,000 --> 00:35:31,759 Speaker 1: was one of the kind of key accusations against him, 550 00:35:31,840 --> 00:35:34,960 Speaker 1: So is he now trying to take back the guilty play. 551 00:35:35,480 --> 00:35:38,719 Speaker 1: So it's not entirely clear what's happening right now. He's 552 00:35:38,760 --> 00:35:42,040 Speaker 1: been represented since the early days post riot by a 553 00:35:42,080 --> 00:35:45,120 Speaker 1: guy named Albert Watkin, the defense attorney. He's been very 554 00:35:45,200 --> 00:35:49,120 Speaker 1: kind of outspoken in his sort of endorsement of Jacob 555 00:35:49,160 --> 00:35:52,000 Speaker 1: Chansley and arguing that he's not actually a bad person, 556 00:35:52,080 --> 00:35:54,759 Speaker 1: that he's a peace lover, that sort of thing. But 557 00:35:55,000 --> 00:35:58,279 Speaker 1: Watkins essentially fired his chancelly lawyer and replaced by a 558 00:35:58,280 --> 00:36:01,640 Speaker 1: guy named John Pierce, who representing a lot of other 559 00:36:01,719 --> 00:36:06,080 Speaker 1: capital rioters in this kind of sprawling investigation, and earlier 560 00:36:06,120 --> 00:36:09,280 Speaker 1: today Pierce filed a notice of appeal saying that Chadley 561 00:36:09,360 --> 00:36:12,439 Speaker 1: is going to challenge the sentence at the appeals court 562 00:36:12,520 --> 00:36:15,160 Speaker 1: level in Washington. We haven't seen the kind of full 563 00:36:15,280 --> 00:36:18,120 Speaker 1: text yet of what Chandley is saying, what his argument 564 00:36:18,200 --> 00:36:20,480 Speaker 1: is going to be. One potential option would be to 565 00:36:20,560 --> 00:36:24,160 Speaker 1: argue that he was inadequately counseled by Watkins as original lawyer. 566 00:36:24,239 --> 00:36:26,919 Speaker 1: So that's something that we're anticipating, kind of looking out 567 00:36:27,000 --> 00:36:29,400 Speaker 1: for his more filings hit the docut in this case 568 00:36:29,680 --> 00:36:32,960 Speaker 1: that forty one months that was less than the fifty 569 00:36:33,000 --> 00:36:36,080 Speaker 1: one months that the prosecutors had requested, even though it 570 00:36:36,160 --> 00:36:39,799 Speaker 1: was one of the stiffest handed out so far. That's right, 571 00:36:39,960 --> 00:36:42,839 Speaker 1: and that's partly because I think Chandley gave a very 572 00:36:42,960 --> 00:36:45,960 Speaker 1: kind of authentic address to the court. You know, he 573 00:36:46,040 --> 00:36:49,600 Speaker 1: showed that he was remorseful, and I think that resonated 574 00:36:49,680 --> 00:36:52,200 Speaker 1: with the judge as he handed down the sentence. It 575 00:36:52,360 --> 00:36:56,120 Speaker 1: seems like it's a long stretch to think that he's 576 00:36:56,160 --> 00:36:59,480 Speaker 1: going to be able to challenge his sentence when the 577 00:36:59,520 --> 00:37:02,719 Speaker 1: sentence was in the guidelines, was in the framework, was 578 00:37:02,840 --> 00:37:05,920 Speaker 1: less than what the prosecutors wanted, and he was fully 579 00:37:05,920 --> 00:37:08,839 Speaker 1: represented by a lawyer. So it just seems like an 580 00:37:08,960 --> 00:37:12,200 Speaker 1: uphill battle and kind of strange. It is kind of 581 00:37:12,239 --> 00:37:16,880 Speaker 1: strange to enormous long shot. I think that every expert 582 00:37:16,920 --> 00:37:20,480 Speaker 1: who's following this pretty much agrees that it's very unlikely 583 00:37:20,560 --> 00:37:22,719 Speaker 1: that he'll he'll end up with a sentence less than 584 00:37:22,760 --> 00:37:26,920 Speaker 1: the one he's already received. How many other capital riders 585 00:37:27,000 --> 00:37:31,040 Speaker 1: have been charged, how many have been sentenced? About six 586 00:37:31,080 --> 00:37:34,239 Speaker 1: hundred have been have been charged so far, huge investigation. 587 00:37:34,320 --> 00:37:37,240 Speaker 1: We're still seeing, you know, more arrest every few days. 588 00:37:37,640 --> 00:37:40,920 Speaker 1: The man hunt is very much continuing. In terms of sentences, 589 00:37:41,040 --> 00:37:44,320 Speaker 1: moves had maybe a couple dozen so far, Roughly the 590 00:37:44,400 --> 00:37:47,960 Speaker 1: vast majority haven't involved jail time. Writers have been mostly 591 00:37:48,360 --> 00:37:51,759 Speaker 1: sentenced time served and released or given probationary sentences that 592 00:37:51,840 --> 00:37:53,480 Speaker 1: sort of thing. So we've only had a time of 593 00:37:53,560 --> 00:37:56,359 Speaker 1: small number that have carried serious jail times. But that's 594 00:37:56,400 --> 00:37:59,520 Speaker 1: also partly because many of the defendants facing the most 595 00:37:59,520 --> 00:38:02,920 Speaker 1: serious sizations just haven't been sentenced yet. I mean, some 596 00:38:03,040 --> 00:38:05,560 Speaker 1: of them aren't pleading guilty, like in the big kind 597 00:38:05,560 --> 00:38:08,320 Speaker 1: of conspiracy cases that are set to go to trial 598 00:38:08,880 --> 00:38:12,440 Speaker 1: next year. And in some instances, you know, it's just, 599 00:38:12,560 --> 00:38:15,040 Speaker 1: you know, a defendant who was accused of something relatively 600 00:38:15,080 --> 00:38:16,839 Speaker 1: minor who has been sentenced, and it sort of makes 601 00:38:16,840 --> 00:38:19,600 Speaker 1: sense that the jail term hasn't been that long. So 602 00:38:19,960 --> 00:38:22,440 Speaker 1: I'm not sure if you know this or if anyone 603 00:38:22,520 --> 00:38:26,000 Speaker 1: knows this. So the FBI, they're they're looking for the 604 00:38:26,000 --> 00:38:30,080 Speaker 1: people who participated in the riot itself. We're hearing a 605 00:38:30,080 --> 00:38:33,200 Speaker 1: lot from the January six committee about organizers on what 606 00:38:33,320 --> 00:38:36,760 Speaker 1: might have happened behind the scenes. Is the FBI investigating 607 00:38:36,800 --> 00:38:39,600 Speaker 1: that as well? The truth is, we don't really know, 608 00:38:39,800 --> 00:38:43,840 Speaker 1: since obviously those sorts of investigations are totally cloaked in secrecy. 609 00:38:44,000 --> 00:38:46,440 Speaker 1: There were kind of early rumbling in this sort of 610 00:38:46,480 --> 00:38:49,839 Speaker 1: direct aftermath of the riot about the FBI looking at 611 00:38:49,880 --> 00:38:52,279 Speaker 1: people who'd organized it. I mean, obviously there was talk 612 00:38:52,360 --> 00:38:55,520 Speaker 1: even of Trump being indicted for inciting the riot. That 613 00:38:55,560 --> 00:38:58,440 Speaker 1: hasn't happened. There hasn't really been any public indication that 614 00:38:58,560 --> 00:39:02,279 Speaker 1: that's going to happen, and so it certainly seems as 615 00:39:02,320 --> 00:39:06,719 Speaker 1: if the agency's priority at the moment is simply arresting 616 00:39:06,880 --> 00:39:09,240 Speaker 1: the people who were there on the grounds who breached 617 00:39:09,239 --> 00:39:11,880 Speaker 1: the building, some of whom were also involved in planning. 618 00:39:11,880 --> 00:39:14,520 Speaker 1: In these big conspiracy cases involved people who are who 619 00:39:14,520 --> 00:39:17,239 Speaker 1: are helping to plan the riot, But we haven't yet 620 00:39:17,320 --> 00:39:20,120 Speaker 1: seen the Justice Department go after those sort of big 621 00:39:20,239 --> 00:39:22,759 Speaker 1: name associates of Trump, the types of people who are 622 00:39:22,800 --> 00:39:26,440 Speaker 1: being subpoenaed by the Congressional Committee. Thanks David. That's Bloomberg 623 00:39:26,520 --> 00:39:29,759 Speaker 1: Legal reporter David Yaffe Bellini, and that's it for this 624 00:39:29,880 --> 00:39:32,640 Speaker 1: edition of the Bloomberg Law Show. Remember you can always 625 00:39:32,640 --> 00:39:35,560 Speaker 1: get the latest legal news on our Bloomberg Law Podcast. 626 00:39:35,840 --> 00:39:38,879 Speaker 1: You can find them on Apple Podcasts, Spotify, and at 627 00:39:39,040 --> 00:39:44,080 Speaker 1: www dot Bloomberg dot com slash podcast Slash Law, and 628 00:39:44,120 --> 00:39:46,600 Speaker 1: remember to tune in to The Bloomberg Law Show every 629 00:39:46,640 --> 00:39:50,080 Speaker 1: week night at ten pm Wall Street Time. I'm June 630 00:39:50,080 --> 00:39:52,279 Speaker 1: Grosso and you're listening to Bloomberg